CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 mars 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .s491F5244 { font-family:Arial; font-style:italic; color:#ff0000 } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA84E9545 { width:28.08pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD2857263 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s93EDF1FF { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sAA8DEB86 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .s16935426 { margin-top:36pt; margin-bottom:30pt; text-align:justify; font-size:14pt } .sF11CDCAF { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s1B0D0B53 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s33C53B69 { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6EF3B654 { margin-top:12pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8C50CFA1 { margin-top:18pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s5653C172 { margin-top:12pt; margin-left:59.5pt; margin-bottom:18pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC273AADF { margin-top:18pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF0D62E79 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sEBA8B701 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sAC7466F { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s60723A49 { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA68D9128 { width:171.94pt; display:inline-block }       FIFTH SECTION             CASE OF RANGELOV v. GERMANY   (Application no. 5123/07)               JUDGMENT     STRASBOURG   22 March 2012   FINAL   22/06/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Rangelov v. Germany , The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Dean Spielmann, President,   Elisabet Fura,   Boštjan M. Zupančič,   Mark Villiger,   Ganna Yudkivska,   Angelika Nußberger,   André Potocki, judges,   and Claudia Westerdiek, Section Registrar, Having deliberated in private on 21 February 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 5123/07) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Georgiev Cvetan Rangelov (“the applicant”), on 12 October 2004. 2.     The applicant, who had been granted legal aid, was initially represented by Ms U. Groos and subsequently by Mr J. Oelbermann, both lawyers practising in Berlin. The German Government (“the Government”) were represented by their Agents, Mrs A. Wittling-Vogel, Ministerialdirigentin , and Mr H.-J. Behrens, Ministerialrat , of the Federal Ministry of Justice. 3.     The applicant alleged that the execution of the preventive detention order against him had violated Articles 5 § 1 and 14 of the Convention because in view of his foreign nationality, he had been refused important measures putting him in a position to prove that he was no longer dangerous to the public. 4.     On 7 March 2007 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.     The Government of Bulgaria, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), did not indicate that they wished to exercise that right. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1961. When lodging his application, he was detained in Straubing Prison (Germany). He is currently detained in Grad Vraca (Bulgaria). A.     The applicant’s previous convictions, the order for his preventive detention and for his expulsion 7.     The applicant entered Germany in 1979. He has been convicted some fifteen times since 1980, notably of theft and burglary. In particular, on 1   March 1984 the Kempten District Court convicted him of three counts of joint theft as a member of a gang and sentenced him to three years’ imprisonment. On 7 October 1988 the Munich I Regional Court convicted the applicant of six counts of burglary and one count of attempted burglary and sentenced him to five years’ imprisonment. On 1 October 1993 the Munich District Court convicted the applicant of joint attempted burglary, committed approximately one month after his release from prison, and sentenced him to one year and six months’ imprisonment. 8.     On 21 December 1994 the applicant was arrested and remanded in detention. 9.     On 26 January 1996 the Munich I Regional Court convicted the applicant of eight counts of burglary and attempted burglary, committed only a few months after his release from prison, and sentenced him to eight years and six months’ imprisonment. It found that by breaking into different shops, the applicant had stolen goods worth some 140,000 Deutschmarks (approximately 71,581 euros). It further ordered the applicant’s preventive detention pursuant to Article 66 § 1 of the Criminal Code (see paragraphs   40-41 below). Having regard to an expert report, the court found that the applicant had a propensity to commit offences by which serious economic damage was caused and was therefore dangerous to the public. 10.     By a decision of 16 April 1997, supplemented on 29 October 1997, the city of Munich ordered the applicant’s expulsion to Bulgaria and prohibited him to re-enter Germany for an indefinite duration in view of his criminal convictions. It authorised the applicant’s expulsion directly from prison as soon as he had served his sentence. The expulsion order became final on 30 December 1997, the regional government of Upper Bavaria having dismissed the applicant’s appeal on 25 November 1997. 11.     In the plan governing the execution of the applicant’s sentence, drawn up by the Straubing Prison authorities and presented to the applicant on 9 October 1997, it is noted that the applicant’s transfer to a social therapeutic institution, relaxations in the conditions of his detention and preparations for his release were not envisaged as the city of Munich had issued a deportation order against him. 12.     On 7 January 2002 the Erlangen Prison authorities informed the applicant, who was at that time detained in Straubing Prison, that it was not possible to transfer him to Erlangen in order to enable him to participate in a social therapy because he was liable to be expelled after having served his prison sentence. 13.     The applicant served his full prison sentence until 19 June 2003. Since then, he was remanded in preventive detention. B.     The proceedings at issue 1.     The decision of the Regional Court 14.     On 21 August 2003 the Regensburg Regional Court, in review proceedings pursuant to Article 67c § 1 of the Criminal Code (see paragraph   42 below), decided that the execution of the applicant’s preventive detention was still necessary in view of its objective. 15.     On 1 December 2003 the Nuremberg Court of Appeal, allowing the applicant’s appeal, quashed the decision of 21 August 2003 and remitted the case to the Regional Court. It found that the Regional Court had not been entitled to authorise one of its judges to hear the applicant alone instead of hearing him in its full composition without giving reasons for doing so. Moreover, the refusal of the Straubing Prison authorities to allow the applicant’s defence counsel to inspect his personal files had violated the right to a fair trial. 16.     The applicant’s counsel was subsequently granted access to the applicant’s personal files at Straubing Prison. 17.     On 26 February 2004 the Regensburg Regional Court, having heard the applicant on 15 January 2004 and the applicant and the two experts W. and T. on 19 February 2004, again decided that the execution of the applicant’s preventive detention was necessary in view of its objective (Article 67c § 1 of the Criminal Code). It therefore refused to suspend the execution of the applicant’s preventive detention and to grant probation. 18.     Having regard to the report submitted by the expert for forensic psychiatry W., the Regional Court found that it was very likely that the applicant would reoffend if released. He had been convicted of burglary on numerous occasions and had reoffended shortly after having served long prison sentences. As confirmed by a report submitted by the Straubing Prison authorities dated 17 January 2003 and by the applicant’s statements at the hearing, the applicant continuously refused critically to reflect on his offences and felt persecuted and wrongfully convicted by the German courts. 19.     The Regional Court considered that there were also no other elements indicating that the applicant was no longer inclined to reoffend. It noted that according to expert W., it was advisable for the applicant to participate in a social therapy. It conceded that the applicant had not been admitted to a social therapy in Erlangen Prison he had applied for in 2002. The conditions of his detention had also not been relaxed ( Vollzugslockerungen ). Both of these measures were important conditions for arriving at a prognosis that he was no longer dangerous to the public. However, this did not alter the fact that the applicant kept posing a risk to the public. 20.     According to the Regional Court, the applicant’s preventive detention was also not disproportionate. As the applicant was not a German national it was unlikely that the prison authorities, having regard to the usual practice, would relax his conditions of detention. He had further been refused a social therapy in view of his imminent expulsion. The court considered that it was illegal to retain a convicted person in preventive detention for an indefinite period of time only as a consequence of his foreign nationality and the resulting refusal of relaxed conditions of imprisonment. The Public Prosecutor’s Office would have to consider this issue when deciding on a fresh motion lodged by the applicant to suspend his preventive detention pursuant to Article 456a of the Code of Criminal Procedure (see paragraph 45 below). Otherwise, a suspension of the preventive detention order against the applicant on probation could have to be ordered in the future for reasons of proportionality even without the conditions of his detention having previously been relaxed. 2.     The decision of the Nuremberg Court of Appeal 21.     On 23 April 2004 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 26 February 2004. 22.     Endorsing the reasons given by the Regional Court, the Court of Appeal found that the applicant was still dangerous to the public. He had also proved obstinate in prison and had to be punished three times in 2003 for having insulted the prison staff. Due to the fact that the applicant, as confirmed by expert W., refused to take responsibility for his past offences, there were no suitable measures to prepare the applicant adequately for his release. As the applicant was in preventive detention only since 20 June 2003, the execution of this measure was still proportionate. 3.     The decision of the Federal Constitutional Court 23.     On 27 May 2004 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He notably argued that his right to freedom as guaranteed by Article 2 § 2 of the Basic Law was violated because his preventive detention was disproportionate. Moreover, he claimed that the refusal to admit him to a social therapy due to his imminent expulsion discriminated him because of his Bulgarian nationality and therefore disregarded his right to equality under Article 3 of the Basic Law. 24.     On 28 September 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint and to grant him legal aid (no. 2 BvR 1079/04). It found that his complaint had no prospects of success. There was nothing to indicate that the criminal courts, in reaching their decision under Article 67c § 1 of the Criminal Code, notably in finding that the applicant was still dangerous, had failed duly to consider human dignity and the right to freedom as guaranteed by the Basic Law. 25.     The Federal Constitutional Court confirmed that measures relaxing the conditions of detention were a decisive factor for the prognosis of a convicted person’s dangerousness. However, the applicant neither claimed to have applied for such measures in the course of his preventive detention nor to have been unlawfully refused such measures. The decisions of the criminal courts were also not based on the fact that until then, no such measures had been granted. As regards therapeutic measures, the criminal courts had rightly pointed out that due to the applicant’s persistent refusal to accept responsibility for his offences there were no suitable measures to prepare him adequately for his release. C.     Subsequent developments 1.     Proceedings concerning relaxations in the conditions of the applicant’s detention 26.     On 25 November 2004 the Straubing District Court dismissed the applicant’s request for measures relaxing the conditions of his preventive detention, notably leave under escort for one day under the supervision of two prison officers. It argued that he might abscond on that occasion. The applicant’s appeal on points of law against this decision to the Nuremberg Court of Appeal was to no avail. On 14 March 2006 the Straubing Prison authorities dismissed another request made by the applicant to relax his conditions of preventive detention on the same grounds. 2.     Proceedings concerning the applicant’s admission to a therapy 27.     On 17 December 2004 the Erlangen Prison again declared not to consent to a transfer of the applicant from Straubing Prison to it in order to admit the applicant to a social therapy. It argued that it was not in a position to prepare the applicant, who was liable to be expelled, for a life without offences in Bulgaria. The living conditions in that country were not known to the therapists. On 31 January 2005 the Nuremberg-Fürth Regional Court dismissed as inadmissible the applicant’s request to declare that refusal unlawful. It found that it were the Straubing Prison authorities which were competent to decide on the applicant’s transfer to a different prison. 3.     Judicial review of the applicant’s preventive detention 28.     On 21 December 2006 the Regensburg Regional Court, reviewing the necessity of the applicant’s preventive detention under Articles 67d § 2 and 67e of the Criminal Code (see paragraphs 43-44 below), refused to suspend the execution of the applicant’s preventive detention order on probation. Having regard to the report of psychiatric expert A. it had consulted, it found that there was still a risk that the applicant would commit further serious offences against the property of others (but no violent offences) if released. 29.     The Regional Court considered that the applicant’s continued preventive detention was still proportionate. It conceded that it was problematic that no measures at all were planned by the prison authorities to further the applicant’s reintegration into society. Moreover, owing to, in particular, his foreign nationality, the applicant could not expect any relaxations in the conditions of his detention. In practice, the latter were a precondition for coming to an assessment that a detainee was no longer dangerous to the public. Therefore, the court would have to decide at the next periodic review of the applicant’s preventive detention whether the applicant was to be released for reasons of proportionality, despite the fact that he had not previously been granted relaxations in the conditions of his detention and had not been considered as no longer posing a threat to the public. 30.     On 12 March 2007 the Nuremberg Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. It noted, in particular, that expert A. had considered that there was no starting point for beginning with measures preparing the applicant’s conditional release. As he contested having committed the property offences he had been found guilt of, he could not critically reflect on his criminal behaviour. Therefore, relaxations in the conditions of the applicant’s detention, which were very important to arrive at a prognosis that a person was no longer dangerous to the public, had not been refused without good cause. 4.     Proceedings under Article 456a of the Code of Criminal Procedure (a)     First set of proceedings 31.     On 16 February 2005 the Munich I Public Prosecutor’s Office dismissed the applicant’s request to suspend the execution of his preventive detention in view of his imminent expulsion under Article 456a of the Code of Criminal Procedure. On 25 April 2005 the General Public Prosecutor dismissed the applicant’s appeal. 32.     On 12 July 2005 the Munich Court of Appeal dismissed the applicant’s request for judicial review. Endorsing the reasons given by the prosecution authorities, it found that there was still a risk that the applicant reoffended and that he was still was not conscious of his guilt. In these circumstances, a therapeutic treatment was without prospects of success. 33.     On 19 June 2007 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1676/05). It found that the decision of the Court of Appeal to consider as lawful the prosecution’s balancing between the public interest in the continuation of the applicant’s preventive detention and the applicant’s interest in his personal liberty had – at least at that time – not been unconstitutional. (b)     Second set of proceedings 34.     On 7 November 2005 the Munich I Public Prosecutor’s Office dismissed another request made by the applicant to suspend the execution of his preventive detention under Article 456a of the Code of Criminal Procedure on the same grounds. 35.     The applicant’s appeals were to no avail. In its decision of 16 May 2006 the Munich Court of Appeal noted, in particular, that it might appear contradictory to the applicant that measures aiming at his reintegration into society, such as a social therapy, were refused to him because of the deportation order against him, but that the authorities nevertheless refused to suspend the execution of his preventive detention under Article 456a of the Code of Criminal Procedure. However, the refusal of the said measures alone did not mean that the prosecution authorities could only exercise their discretion in a lawful manner by granting his request under the said provision. (c)     Third set of proceedings 36.     On 7 September 2007 the Munich I Public Prosecutor’s Office decided to suspend the execution of the applicant’s preventive detention at the date of his expulsion to Bulgaria, and on 1 November 2007 at the earliest, under Article 456a of the Code of Criminal Procedure. 37.     On 13 December 2007 the applicant was expelled to Bulgaria in accordance with the deportation order issued by the city of Munich on 16   April 1997. 5.     Further developments 38.     On 30 November 2009 the Korneuburg Regional Court (Austria) convicted the applicant of two counts of murder, one count of attempted murder and robbery with firearms, committed on 1 June 2009 in Austria and sentenced him to life imprisonment. The judgment was upheld on appeal. The applicant was subsequently transferred to Bulgaria in order to serve his sentence. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Provisions governing preventive detention 39.     A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M.   v.   Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows: 1.     The order of preventive detention by the sentencing court 40.     The sentencing court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code). 41.     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 propensity 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 of the Criminal Code, in its version in force at the relevant time). 2.     The order for the execution of preventive detention by the court responsible for the execution of sentences 42.     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 responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b (1)(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 the execution of the preventive detention order and places the person on probation with supervision of their conduct which commences with the suspension. 3.     Judicial review and duration of preventive detention 43.     Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article, in its version in force at the relevant time, provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the 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 release. 44.     Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time-limit is two years (paragraph 2 of Article 67e). B.     Provision on the execution of sentences in cases of expulsion 45.     Pursuant to Article 456a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may dispense with the execution of a prison sentence or a measure of correction and prevention if the convicted person is expelled from German territory. The execution of the sentence or measure may be continued if the expelled person returns to Germany territory (Article 456a § 2 of the Code of Criminal Procedure). C.     Provisions of the Execution of Sentences Act 46.     Section 9 § 2 of the Execution of Sentences Act provides that prisoners may be transferred to a socio-therapeutic institution with their consent if the special therapeutic measures and social aids of the institution are advisable for their rehabilitation. The transfer is conditional upon the consent of the head of the socio-therapeutic institution concerned. 47.     Under section 11 § 1 of the Execution of Sentences Act, the conditions of detention may be relaxed by making an order permitting the prisoner to perform regular work outside prison either under the supervision of a member of the prison staff (outside work) or without such supervision (work release). The prisoner may further be permitted to leave the prison for a certain time during the day either under the supervision of the prison staff (short leave under escort) or without such supervision (short leave). Under section 11 § 2 of the said Act, these measures may only be ordered with the prisoner’s consent and if there is no risk that the prisoner might seek to abscond or commit offences during the relaxation of the conditions of his detention. 48.     Under section 6 § 1 (c) of the Federal Administrative Rules relating to Article 11 of the Execution of Sentences Act, which seek to ensure the uniform application of the law by the authorities, external work, work release and short leave may, as a rule, not be permitted to prisoners against whom a final expulsion order is in force and who are to be deported directly from prison. Exceptions may be granted in agreement with the competent aliens’ authority. Short leave under escort may be authorised. D.     Recent case-law of the Federal Constitutional Court on preventive detention 49.     On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for the complainants’ preventive detention (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2   BvR   1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 50.     The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( Abstandsgebot ). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003. 51.     The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. The provisions on the imposition and duration of preventive detention which did not concern the retrospective ordering or prolongation of preventive detention could only continue to be applied in the transitional period subject to a strict review of proportionality. As a general rule, proportionality was only observed where there was a danger of the person concerned committing serious violent crimes or sexual offences if released. 52.     In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§   137   ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M.   v.   Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 5 53.     The applicant complained under Article 5 § 1 of the Convention that his preventive detention was unlawful as he had been refused a social therapy or relaxations in the conditions of his detention in view of his future expulsion. However, at the same time his sentence was not suspended because the prosecution authorities argued that he was not impressed by the execution of his sentence and had not changed his attitude towards his offences. Relying on Article 14 of the Convention, he further argued that he had suffered discrimination because of his Bulgarian origin as a result of the refusal of the said measures when the order for the execution of his preventive detention was made. 54.     The Court considers that these complaints fall to be examined solely under Article 14, taken together with Article 5 § 1 of the Convention, which read as follows: Article 5 “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)     the lawful detention of a person after conviction by a competent court; ...” Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 55.     The Government contested that argument. A.     Scope of the case before the Court 56.     Having regard to the parties’ submissions, the Court considers it necessary to clarify at the outset that the proceedings at issue in the present application are only the proceedings for judicial review, under Article 67c of the Criminal Code, of whether the execution of the applicant’s preventive detention was still necessary (see paragraphs 14-25 above). Further proceedings brought by the applicant concerning relaxations in the conditions of his detention, his admission to a therapy or the suspension, under Article 456a of the Code of Criminal Procedure, of the execution of his preventive detention in view of his expulsion are relevant for understanding the execution in practice of the preventive detention order against the applicant, but are not as such the subject-matter of the present application. B.     Admissibility 1.     The parties’ submissions (a)     The Government 57.     The Government argued that the application was already inadmissible. The applicant’s complaints relating to the prosecution’s failure to apply Article 456a of the Code of Criminal Procedure in 2002/2003, raised in his initial application to the Court, were declared inadmissible by the Court on 20 February 2007 (application no. 30182/03) and were not the subject-matter of the present application. Furthermore, the applicant failed sufficiently to set out his present complaints in relation to the proceedings under Article 67c of the Criminal Code here at issue, as required by Article 34 of the Convention and Rule 47 of the Rules of Court. Moreover, when lodging his application with the Court, the applicant had not yet exhausted domestic remedies in accordance with Article 35 § 1 of the Convention. Furthermore, the applicant had failed to exhaust domestic remedies in relation to the proceedings concerning relaxations in the conditions of his detention, his admission to a social therapy and the suspension of the execution of his preventive detention in view of his deportation. 58.     In their further observations dated 14 June 2011 the Government objected that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention also on another ground. They argued that in its leading judgment of 4 May 2011 on preventive detention (see paragraphs 49-52 above), the Federal Constitutional Court had introduced a new domestic remedy for the review of the ongoing preventive detention of persons concerned by that judgment. For persons in preventive detention which had not been ordered or prolonged retrospectively, as in the applicant’s case, the Federal Constitutional Court had set stricter standards for their preventive detention to continue. The prolongation of preventive detention could be ordered only if there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. The applicant had been obliged to avail himself of that new domestic remedy. 59.     The Government further took the view that the applicant could no longer claim to be the victim of a violation of his Convention rights. In its above-mentioned judgment, the Federal Constitutional Court had implemented the findings the Court had made in its judgments on preventive detention in Germany. The Convention violations found had thus been remedied in part by the Federal Constitutional Court in its transitional rules, and would be remedied as soon as possible as to the remaining part. (b)     The applicant 60.     The applicant contested that view. He submitted that he had submitted to the Court all relevant information which was requested in the application form. Furthermore, he had exhausted all effective domestic remedies prior to the communication of the application by the Court to the respondent Government. 2.     The Court’s assessment (a)     Exhaustion of domestic remedies 61.     The Court refers to its above finding (see paragraph 56) that the proceedings at issue in the present application are the proceedings for judicial review, under Article 67c of the Criminal Code, of whether the execution of the applicant’s preventive detention was still necessary. The applicant’s preventive detention was ordered in these proceedings by the Regensburg Regional Court on 26 February 2004 and confirmed by the Nuremberg Court of Appeal on 23 April 2004 and by the Federal Constitutional Court on 28 September 2004. The present application was lodged with the Court on 12 October 2004. It was subsequently separated from the proceedings at issue in application no. 30182/03 and registered under the current application number. Application no. 30182/03, which concerned complaints relating to the execution of the applicant’s prison sentence, was declared inadmissible afterwards. The present application was communicated by the President of the Fifth Section on 7 March 2007. 62.     Having regard to the foregoing, the Court considers that in the proceedings which alone are at issue here, the applicant exhausted domestic remedies in that he obtained decisions of the Regional Court, the Court of Appeal and the Federal Constitutional Court in accordance with the formal requirements of domestic law, as required by Article 35 § 1 of the Convention, prior to lodging his (new) application with the Court. The Government’s objection of non-exhaustion of domestic remedies must therefore be dismissed in this respect. 63.     As regards the Government’s additional objection of non-exhaustion of domestic remedies, made in their further observations dated 14 June 2011, the Court notes, irrespective of the question whether the Government should be considered estopped from raising that objection (see Rule 55 of the Rules of Court), the following. According to its well ‑ established case-law, under Article 35 § 1 of the Convention, recourse should be had to remedies which are available and sufficient to afford redress in respect of the breach of the Convention alleged (see, among many other authorities, Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV). 64.     As noted above, the proceedings here at issue concern the applicant’s preventive detention ordered and confirmed in 2004. The applicant was released from preventive detention and expelled to Bulgaria on 13 December 2007. The new domestic remedy introduced subsequently, on 4 May 2011, by the Federal Constitutional Court for the review of ongoing preventive detention is not, therefore, capable of affording redress to the applicant in relation to his preventive detention at issue in the present case and which had previously already come to an end. The applicant thus did not have to avail himself of that remedy for the purposes of Article 35 §   1 of the Convention. Consequently, the Government’s objection of non ‑ exhaustion of domestic remedies must also be rejected in this respect. (b)     Loss of victim status 65.     The Court observes that the Government also objected that the applicant could no longer claim to be the victim of a violation of his Convention rights within the meaning of Article 34 of the Convention as the Federal Constitutional Court had remedied the alleged Convention violations by its judgment of 4 May 2011 and, in particular, by the transitional rules it contained. 66.     The Court refers to its well-established case-law on that issue (see, inter alia , Eckle v. Germany , 15 July 1982, § 66, Series A no. 51; Amuur v.   France , 25 June 1996, § 36, Reports 1996 ‑ III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). It agrees with the Government that by its said judgment, the Federal Constitutional Court implemented in the domestic legal order the Court’s findings in its judgments on preventive detention in Germany ( M. v. Germany (cited above) and the follow-up cases thereto). 67.     Having regard to the scope of the Federal Constitutional Court’s judgment, however, it appears doubtful whether that court intended to acknowledge a violation of Article 14 of the Convention, read in conjunction with Article 5 § 1 of the Convention, in the circumstances at issue in the present application. In any event, the Court, referring to its findings above (see paragraph 64), considers that the Federal Constitutional Court’s judgment of 4 May 2011 cannot be deemed to have afforded redress for the alleged breach of Article 14 taken in conjunction with Article 5 § 1 resulting from the applicant’s preventive detention as ordered by the Regensburg Regional Court on 26 February 2004 and as confirmed on appeal and by the Federal Constitutional Court itself on 28 September 2004. 68.     The Government’s objection that the applicant has lost his victim status must therefore likewise be rejected. (c)     Conclusion 69.     The Court further notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. In particular, having regard to the material before it, it considers that the applicant sufficiently substantiated his application – which, having regard to that material, was communicated by the President of the Fifth Section – in accordance with Article 34 of the Convention and Rule 47 of the Rules of Court. The Court further notes that the application is not inadmissible on any other grounds. It must therefore be declared admissible. C.     Merits 1.     The parties’ submissions (a)     The applicant 70.     The applicant complained of a violation of Articles 5 § 1 and 14 of the Convention by the domestic courts’ decision to execute the preventive detention order against him. He took the view that he had been denied any measures and treatment in detention only because of the fact that he was a foreign national. This had already been fixed in the plan concerning the execution of his detention on his arrival in prison and had not, therefore, been a result of his conduct in prison. 71.     The applicant stressed that he had not been given any chance to obtain the suspension of his preventive detention and to be granted probation. Without having previously proved reliable during relaxations in the conditions of his detention, no expert would find that there was no longer a risk that he would reoffend if released and thus recommend the suspension of the execution of the preventive detention order. He further stressed that under Article 11 of the Execution of Sentences Act (see paragraph 47 above), it was necessary for him to agree to measures relaxing the conditions of his detention, but he had not been obliged to request such measures himself. It was for the prison authority to examine on its own motion whether these measures should be granted. As the prison authorities had decided against granting him such measures already on his arrival in prison and having regard to the applicable administrative rules (see paragraph 48 above), any request made by him to be granted such relaxations had, in any event, not had any prospects of success. Being a foreigner against whom a final expulsion order was in force, he had not been eligible for such measures. 72.     The same applied to the refusal to offer him a social therapy or any other preparations for his release. In view of this, his allegedly negative conduct in prison or his allegedly lacking receptiveness for a therapy had been irrelevant for that refusal. He further stressed that a social therapy was aimed at developing social competences and learning adequate conflict solution mechanisms. Unlike relaxations in the conditions of a person’s detention, it was not aimed at preparing a detainee’s future social contacts. His alleged lack to accept his guilt and his negative conduct in prison should have been an indication that he lacked social competence, which should therefore have been addressed in a social therapy. He had been refused that therapy in view of his foreign nationality, in accordance with the current practice relating to the Execution of Sentences Act. Any request by him to be offered such therapy also with the Straubing Prison authorities would therefore have been to no avail. 73.     The applicant further claimed that, having regard to the way in which his preventive detention had been executed, his deprivatio