CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 juin 2012

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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 } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FIFTH SECTION             CASE OF S. v. GERMANY   (Application no. 3300/10)               JUDGMENT       STRASBOURG   28 June 2012   FINAL   28/09/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of S. v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Dean Spielmann, President,   Mark Villiger,   Karel Jungwiert,   Boštjan M. Zupančič,   Ann Power-Forde,   Angelika Nußberger,   André Potocki, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 5 June 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 3300/10) 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 Romanian national, Mr S. (“the applicant”), on 11   January 2010. 2.     The applicant was represented by Mr I.-J. Tegebauer, a lawyer practising in Trier. 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, in particular, that the order for his retrospective preventive detention had breached his right to liberty under Article 5 § 1 of the Convention. 4.     On 23 August 2010 the application was communicated to the Government. The Government of Romania, 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), indicated that they did not wish to exercise that right. On 5 June 2012 the President of the Chamber granted the applicant anonymity of his own motion (Rule 47 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1961 and is currently detained in Straubing Prison. A.     The order for and the execution of the applicant’s placement in a psychiatric hospital 6.     On 23 February 1996 the Munich I Regional Court acquitted the applicant of, inter alia , six counts of assault, nine counts of dangerous assault, of sexual assault and of procuring for lack of criminal responsibility and ordered his placement in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 46 below). 7.     The Regional Court found that between 1991 and 1995 the applicant, who had previously been convicted, in particular, of several counts of assault in Romania and Germany, had committed the offences he had been charged with. The applicant was found, in particular, to have violently threatened with a gun and knife, hit and attempted to strangulate his wife, partly using dangerous instruments or teargas, on a number of occasions. He inflicted on his wife multiple injuries including fractures of her jaw, cheekbones, nose and skull, snags to her nose and genitals as well as lacerations, bruises and swellings all over her body. He had further forced his wife to prostitution for his own material benefit, had forced her to dance naked for an acquaintance and had chased her naked in a forest. Moreover, he had assaulted and sexually assaulted his female friend and a relative of his wife with whom he had an intimate relationship (fettering the latter naked to a tree, urinating on her and introducing fir cones into her rectum and vagina). 8.     The Regional Court, having consulted three medical experts, found that the applicant suffered from a brain disorder, a borderline personality disorder manifesting itself in emotional instability and a paranoiac jealousy and had partly been drunk during his acts. Owing to his pathological mental disorder, it could not be excluded that he had acted without criminal responsibility. The Regional Court further considered that the applicant was to be placed in a psychiatric hospital as he was liable to commit further serious offences and was therefore dangerous to the public. 9.     Following the Regional Court’s judgment, the applicant was placed in different psychiatric hospitals. From 23 February 1996 onwards, he was in Haar psychiatric hospital, from 7 February 1997 onwards in Straubing psychiatric hospital, from 26 October 1999 onwards in Düren psychiatric hospital and from 5 April 2000 onwards in Bedburg-Hau psychiatric hospital. Following his escape from that clinic in October 2002, he was again detained in Düren psychiatric hospital from 18 December 2002 onwards and subsequently in Lippstadt psychiatric hospital. His detention in a psychiatric hospital was confirmed yearly by the competent Regional Court. 10.     On 22 November 2005 the city of Düren ordered the applicant’s expulsion to Romania after he had renounced German nationality in February 2004. The decision became final. 11.     On 9 February 2007 the Paderborn Regional Court terminated the applicant’s detention in a psychiatric hospital ordered by the Munich I Regional Court on 23 February 1996 (Article 67d § 6 of the Criminal Code, see paragraph 42 below). It further delivered its decision, taken the day before, to order the applicant’s provisional detention pending the competent court’s decision whether or not he was to be placed in preventive detention retrospectively. 12.     Having heard evidence from a psychiatric expert, K., who had examined the applicant in person, the Paderborn Regional Court found that the applicant suffered from a personality disorder with paranoiac and dissocial elements. However, that disorder did not exclude or diminish his criminal responsibility. His continued dangerousness for women, in particular for his ex-wife, did not result from a pathological mental disorder but from his chosen attitude towards women. 13.     The applicant was accordingly transferred from the psychiatric hospital to prison. B.     The proceedings at issue 1.     The proceedings before the Munich I Regional Court 14.     On 30 July 2008 the Munich I Regional Court, relying on Article   66b § 3 of the Criminal Code (see paragraph 41 below), which it considered compatible with the Basic Law, ordered the applicant’s preventive detention retrospectively ( nachträgliche Sicherungsverwahrung ). 15.     The Munich I Regional Court noted that, as required by Article 66b § 3 of the Criminal Code, the Paderborn Regional Court had terminated the applicant’s placement in a psychiatric hospital on 9 February 2007 pursuant to Article 67d § 6 of the Criminal Code. 16.     The Regional Court further found that the requirements of Article   66b § 3 (1) of the Criminal Code were met. The Munich I Regional Court had ordered the applicant’s placement in a psychiatric hospital in February 1996 as the applicant had committed, inter alia , several counts of dangerous assault, an offence listed in Article 66 § 3 of the Criminal Code. 17.     Furthermore, the Regional Court considered that a comprehensive assessment of the applicant, his offences and his development during his placement in the psychiatric hospitals revealed that it was very likely that, if released, he would again commit serious offences, similar to those following which he had been placed in a psychiatric hospital, against women related to him, resulting in considerable psychological and physical harm to the victims (Article 66 b § 3 (2) of the Criminal Code). It noted that both psychiatric experts it had consulted had convincingly diagnosed the applicant with a dissocial personality disorder necessitating therapy, and one of them, in addition, with sexual sadism, without his criminal responsibility being diminished or excluded thereby. Expert H., in particular, had considered that the applicant suffered from a combined personality disorder with dissocial, psychopathic, paranoiac and emotionally unstable elements and had formerly abused alcohol. Expert S. had found, in particular, that the applicant was a psychopath. 18.     The Regional Court considered that the applicant’s offences disclosed a violent, degrading and partly sadist attitude towards women which had not changed during his placement in different psychiatric hospitals. The preventive detention of the applicant, who had a propensity to commit serious violent offences, was proportionate. In particular, the applicant’s planned departure to Romania was irrelevant in that respect because Article 66b § 3 of the Criminal Code served to protect potential victims not only in Germany, but also in other States including Romania. 2.     The proceedings before the Federal Court of Justice 19.     On 1 August 2008 the applicant lodged an appeal on points of law which he reasoned on 13 October 2008. He argued that Article 66b § 3 of the Criminal Code and the decisions ordering his preventive detention retrospectively, which were based on that provision, violated his right to liberty and were thus incompatible with the Basic Law and with Article 5 §   1 of the Convention. 20.     On 13 May 2009 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. 3.     The proceedings before the Federal Constitutional Court 21.     On 4 June 2009 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He argued that the retrospective order for his preventive detention, based on Article   66b § 3 of the Criminal Code, violated his right to liberty under Article 2 § 2 of the Basic Law. It also disproportionately interfered with that right because his expulsion to Romania would have been as effective as his detention in order to protect potential victims in Germany while interfering less with his fundamental rights. 22.     On 4 November 2009 a chamber of three judges of the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1237/09). C.     The execution of the preventive detention order in practice 23.     According to the Government, in Straubing Prison, five doctors, five psychologists, four educationists and nine social workers offer help to detainees (it has not been specified for how many detainees these staff members were responsible). Sexual and violent offenders may be transferred to a suitable social therapeutic institution if their reintegration into society may be better furthered thereby. If a group therapy proves unsuitable, they may be offered an individual therapy. There are additional courses aimed at preventing further offences on release, including anti ‑ aggression, anti-violence and reasoning and rehabilitation training. Furthermore, detainees who committed their offences under the influence of alcohol or drugs are offered addiction counselling. 24.     The applicant had initially not been ready to apply for his transfer to Straubing Prison’s social therapeutic institution which, according to the prison therapists, would offer him a suitable social therapy for sexual offenders. He claimed to be a violent offender in the first place and to have undergone a sexual therapy already in the psychiatric hospitals. The   Erlangen prison authorities later refused the applicant’s request dated 14 September 2009 to be admitted to its social therapeutic institution for violent offenders. It argued that he did not fit into the institution’s therapeutic concept targeted at offenders sentenced for offences of an average gravity. The applicant did not apply to be admitted to another social therapeutic institution in Kaisheim Prison. He further did not apply for any training courses or addiction counselling. 25.     The applicant has been working in Straubing Prison. He received a visit from his sister once, spoke to his mother on the phone regularly and exchanged letters with her and with two other acquaintances. He has not received any relaxations in the conditions of his detention in view of the enforceable expulsion order against him. D.     Subsequent developments 1.     Review of the applicant’s preventive detention (a)     First set of proceedings 26.     On 29 October 2009 the Regensburg Regional Court dismissed the applicant’s request to declare his preventive detention unlawful. On 11   December 2009 the Nuremberg Court of Appeal dismissed the applicant’s appeal. (b)     Second set of proceedings 27.     On 4 November 2010 the Regensburg Regional Court dismissed the applicant’s request of 5 June 2010 to declare the execution of his preventive detention unlawful. It found, in particular, that the judgment of the European Court of Human Rights of 17 December 2009 in the case of M.   v.   Germany (no. 19359/04 , ECHR 2009) did not constitute a bar to the execution of the judgment in the applicant’s case. That court’s judgments were only binding between the parties to the proceedings in the case of M.   v.   Germany , which had, moreover, concerned a different subject-matter. 28.     On 13 December 2010 the Nuremberg Court of Appeal dismissed the applicant’s appeal. It took the view that the question of whether the applicant’s preventive detention breached the prohibition of retrospective punishment could not be examined in the present proceedings concerning the execution of the applicant’s preventive detention. That issue had to be dealt with in review proceedings under Article 67e of the Criminal Code (see paragraph 45 below). In those proceedings, it had to be examined whether, owing to specific circumstances relating to his person or his conduct, it was highly likely that the applicant would commit the most serious crimes of violence or sexual offences if released. (c)     Third set of proceedings 29.     On 13 October 2011 the Regensburg Regional Court, in review proceedings under Articles 67d § 2 and 67e of the Criminal Code (see paragraphs 44-45 below), declared the applicant’s preventive detention ordered by the Munich I Regional Court on 30 July 2008 terminated and ordered the applicant’s supervision of conduct. 30.     The Regional Court noted that in her report dated 15 August 2011, psychiatric expert L. had considered that the applicant suffered from a personality disorder with paranoiac, dissocial and narcissistic elements and from emotional instability. There was a risk of 44 per cent that the applicant would commit further violent offences against a person related to him in the seven years to come if released. The applicant therefore suffered from a mental disorder within the meaning of the Therapy Detention Act. However, in the Regional Court’s view, there was not a high risk, owing to specific circumstances relating to the applicant’s person or conduct, that he would commit the most serious crimes of violence or sexual offences if released. The requirements set up in the Federal Constitutional Court’s judgment of 4   May 2011 for a continuation of the applicant’s retrospective preventive detention, which applied a fortiori in a case like that of the applicant who had initially been acquitted for lack of criminal responsibility, had therefore not been met. 31.     On 19 December 2011 the Nuremberg Court of Appeal, allowing the prosecution’s appeal, quashed the decision of the Regensburg Regional Court and ordered the applicant’s preventive detention to continue. Contrary to the Regional Court, it considered that under the Federal Constitutional Court’s judgment of 4 May 2011, it was sufficient for preventive detention ordered under Article 66b § 3 to continue if there was a risk, owing to specific circumstances relating to the applicant’s person or conduct, that the person concerned would commit serious crimes of violence or sexual offences. These requirements were met in the applicant’s case. It was not necessary that there was a high risk of the most serious crimes of violence or sexual offences or that the applicant suffered from a mental disorder. These requirements applied only to the (different) cases of preventive detention with retrospective effects which had been at issue in the Federal Constitutional Court’s judgment. 2.     Proceedings under the Bavarian (Mentally Ill Persons’) Placement Act 32.     On 4 November 2010 the Straubing District Court, having heard the applicant in person, dismissed the request made by the city of Straubing to order the applicant’s placement in a psychiatric hospital under the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 47 below). It found that the disorder the applicant suffered from was not so serious as to affect the applicant’s free will. Consequently, the requirements for his detention under Article 1 § 1 of the Bavarian (Mentally Ill Persons’) Placement Act were not met. It was not the purpose of the said Act to authorise the detention of all persons suffering from a mental disease or to close gaps in the provisions on preventive detention. 3.     Proceedings under the Therapy Detention Act 33.     On 3 January 2011 the Straubing Prison authorities lodged a request with the Regensburg Regional Court to order the applicant’s detention under Article 1 of the Therapy Detention Act (see paragraph 48 below). 34.     On 24 October 2011 the Regensburg Regional Court ordered the applicant’s provisional detention for a maximum period of three months under the Therapy Detention Act from the moment the termination of the applicant’s retrospective preventive detention became final. It noted that the psychiatric experts H. and L. had found in their reports, drawn up on the basis of the case-file alone, that the applicant suffered from a personality disorder with dissocial, psychopathic / narcissistic and paranoiac elements and emotional instability. He had previously abused alcohol. He might suffer, in addition, from sexual sadism. The experts had considered that there was a high and a medium to high risk respectively that the applicant would commit further violent offences, in particular against persons closely related to him, if released. The court, endorsing the experts’ findings, therefore considered that there were grounds for concluding that the requirements for the applicant’s detention under the Therapy Detention Act were met. II.     RELEVANT DOMESTIC LAW AND PRACTICE 35.     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, ECHR 2009). A summary of the provisions of the Basic Law governing the right to liberty (Article 2 § 2) and the ban on retrospective application of criminal laws (Article 103 § 2) can also be found in that judgment (ibid., §§ 57 and 61). The provisions referred to in the present case provide as follows: A.     The order of preventive detention 1.     Preventive detention orders by the sentencing court 36.     Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) cover, in particular, placement in a psychiatric hospital (Article 63 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). They may be ordered for offenders in addition to their punishment (compare Articles 63 et seq. of the Criminal Code). 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). 37.     Article 66 of the Criminal Code governs orders for a person’s preventive detention made by the sentencing court when finding the person guilty of an offence. That 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. 38.     Under Article 66 § 3, first sentence, of the Criminal Code, in its version in force at the time of the order for the applicant’s retrospective preventive detention, preventive detention may be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences, including murder, rape and dangerous assault, to at least two years’ imprisonment, if he has previously been convicted (only) once of one or more such offences to at least three years’ imprisonment and if the remaining requirements laid down in Article 66 § 1 (2) and (3) are met. 2.     Retrospective preventive detention orders 39.     The Retrospective Preventive Detention Act ( Gesetz zur Einführung der nachträglichen Sicherungsverwahrung ) of 23 July 2004, which entered into force on 29 July 2004, inserted Articles 66b and 67d § 6 into the Criminal Code; the latter provision was amended by an Act of 13 April 2007. The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met (including cases in which they had never been met from the outset), but who were still dangerous to the public (see German Federal Parliament documents ( BTDrucks ), no. 15/2887, pp. 10, 13/14). 40.     In fact, under the case-law previously established by the courts dealing with the execution of sentences, a person’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered, or had in fact never suffered, from a condition excluding or diminishing his criminal responsibility, even if that person was still dangerous to the public (see Hamm Court of Appeal, no.   4   Ws 389/81, decision of 22 January 1982, Neue Zeitschrift für Strafrecht (NStZ) 1982, p. 300; Karlsruhe Court of Appeal, no.   1   Ws   143/82, decision of 30 June 1982, Monatsschrift für Deutsches Recht (MDR) 1983, p. 151; Federal Court of Justice, no. 3 StR 317/96, judgment of 27 November 1996, Collection of decisions of the Federal Court of Justice in Criminal Matters (BGHSt) no. 42, p. 310; see also Federal Constitutional Court, nos. 2 BvR 1914/92 and 2105/93, decision of 28 December 1994, Neue Juristische Wochenschrift (NJW) 1995, p. 2406; and Federal Court of Justice, no. 4 StR 577/09, decision of 12 May 2010, §   13 with further references). 41.     Article 66b § 3 of the Criminal Code, in its version in force at the relevant time, provided: Article 66b     Retrospective order for placement in preventive detention “(3)     If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement, the court may order preventive detention retrospectively if 1.     the placement of the person concerned under Article 63 was ordered on the basis of several of the offences listed in Article 66 § 3, first sentence, or if the person concerned had either already been sentenced to at least three years’ imprisonment or had been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63, and 2.     a comprehensive assessment of the person concerned, his offences and, in addition, his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims.” 42.     Article 67d § 6 of the Criminal Code, in its version in force at the relevant time, provided: Article 67d     Duration of detention “(6)     If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. On termination of the measure, the conduct of the person concerned shall be supervised. ...” 43.     The said two provisions remained valid also under the Reform of Preventive Detention Act ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code by the said Act, the former paragraph 3, slightly amended, became the only provision of that Article. B.     Judicial review and duration of preventive detention 44.     Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article 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. 45.     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 or should be declared terminated. 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). C.     The detention of mentally ill persons 46.     The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public. 47.     Secondly, pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5   April 1992 (Bavarian (Mentally Ill Persons’) Placement Act – Bayerisches Gesetz über die Unterbringung psychisch Kranker und deren Betreuung ) a court may order a person’s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order. Such an order may only be executed as long as no measure under Article 63 of the Criminal Code has been taken (section 1 § 2 of the said Act). 48.     Furthermore, on 1 January 2011, following the Court’s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Therapy Detention Act – Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter ) entered into force. Under sections 1 § 1 and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be necessary for the protection of the public. D.     Recent case-law of the Federal Constitutional Court 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 a complainant’s preventive detention under Article 66b § 2 of the Criminal Code (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 concerned, both 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 and Article   66b § 3 of the Criminal Code in its version of 23 July 2004. 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. In relation to detainees whose preventive detention had been prolonged retrospectively, or ordered retrospectively under Article 66b § 2 of the Criminal Code (but not preventive detention ordered under Article 66b § 3 of the Criminal Code), the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§   138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence 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 5 § 1 OF THE CONVENTION 53.     The applicant complained that the retrospective order for his preventive detention violated his right to liberty as provided in Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows: “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; ... (e)     the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...” 54.     The Government contested that argument. A.     Admissibility 1.     The parties’ submissions 55.     In their further observations dated 14 June 2011 the Government objected for the first time that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. 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 review of the ongoing preventive detention of persons concerned by that judgment. That court had set stricter standards for these persons’ preventive detention to continue. The applicant had been obliged to avail himself of that new domestic remedy. 56.     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 German preventive detention. The Convention violations found have thus partly been remedied by the Federal Constitutional Court in its transitional rules, and will partly be remedied as soon as possible. 57.     The applicant contested that view. He argued that he had exhausted domestic remedies as required by Article 35 of the Convention in relation to the initial order for his retrospective preventive detention. In its judgment of 4 May 2011, the Federal Constitutional Court had not created a new remedy, but had only laid down conditions for the usual periodic review of preventive detention under Article 67e of the Criminal Code. 58.     The applicant further submitted that he was still a victim of unlawful detention in breach of the Convention within the meaning of Article 34 of the Convention. The German authorities had neither acknowledged a breach of his Convention rights nor had they afforded him compensation. The fact that following his possible release from preventive detention, he might be detained under the Therapy Detention Act, which served to circumvent the Court’s findings of violations of Articles 5 and 7 of the Convention, could obviously not be considered as such compensation. 2.     The Court’s assessment 59.     The Court notes that the applicant in the present case complained about his retrospective preventive detention resulting from the Munich I Regional Court’s judgment of 30 July 2008, confirmed by the Federal Court of Justice (13 May 2009) and by the Federal Constitutional Court (4   November 2009). Any remedies introduced subsequently by the Federal Constitutional Court’s judgment of 4 May 2011 in relation to the review of the applicant’s continued preventive detention are not, therefore, capable of affording redress to the applicant in relation to the prior period of preventive detention here at issue. 60.     The Court has examined the Government’s above objections in similar cases and has rejected them (see, in particular, O.H. v. Germany , no.   4646/08, §§ 62-69, 24 November 2011). It does not see any reason to come to a different conclusion in the present case. Consequently, the Government’s objection that the applicant failed to exhaust domestic remedies and lost his victim status must be dismissed. 61.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant 62.     The applicant argued that his retrospective preventive detention had violated Article 5 § 1 of the Convention. It was not justified under any of the sub-paragraphs (a) to (f) of that provision. 63.     The applicant submitted, first, that his detention was not justified under sub-paragraph (a) of Article 5 § 1 for lack of a “conviction”. Referring to the Court’s decision in the case of Frank v. Germany ((dec.), no.   32705/06, 28 September 2010), he claimed that there had not been a finding of guilt of an offence in his case as he had been acquitted for lack of criminal responsibility by the Munich I Regional Court in 1996. 64.     Moreover, there was, in any event, no sufficient causal connection between the judgment of the Munich I Regional Court of 23 February 1996 and his subsequent preventive detention ordered by the same court on 30   July 2008, as required by Article 5 § 1 (a). His preventive detention, ordered retrospectively under Article 66b § 3 of the Criminal Code in 2008, could not be classified as a special form of his placement in a psychiatric hospital which had been ordered in 1996, but was a different measure of correction and prevention and thus an additional penalty. 65.     The applicant stressed in that context that his placement in preventive detention had not been an automatic or necessary consequence following the termination of his placement in a psychiatric hospital. The   court ordering his preventive detention retrospectively had been obliged to assess anew, on the basis of two fresh expert reports, whether it was very likely that he would commit serious offences if released. Moreover, at the time of the Munich I Regional Court’s judgment in 1996 it had not been foreseeable that his subsequent preventive detention could be ordered following the termination of his placement in a psychiatric hospital. On the contrary, under the well-established case-law of the courts dealing with the execution of sentences at that time (see paragraph 40 above), a person who no longer suffered from a mental disorder diminishing or excluding his criminal responsibility had to be released from the psychiatric hospital, even if it was expected that the person would commit further offences after release. Therefore, he had legitimately expected to be released as soon as he no longer suffered from a condition excluding or diminishing his criminal responsibility. 66.     In the applicant’s submission, his preventive detention was also not justified under sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”. He stressed that the Paderborn Regional Court had based its decision of 9 February 2007 to terminate his detention in a psychiatric hospital on the finding of expert K. that his dangerousness did not result from his personality disorder, but from his attitude, which did not have a pathological cause. The experts consulted by the Munich I Regional Court prior to its judgment of 30 July 2008 had also confirmed that his personality disorder did not affect his criminal responsibility and that his dangerousness to the public therefore was not caused by a disease. 67.     The applicant further took the view that his preventive detention had been unlawful under German law for lack of compliance with the principle of proportionality laid down in Article 62 of the Criminal Code (see paragraph 36 above). His deportation to Romania, ordered by the city of Düren on 22 November 2005, would have been an effective means to protect the German public from him and would not have interfered with his right to liberty. It was not for the German criminal law to protect aliens residing outside the territory of Germany. 68.     The applicant finally submitted that his deprivation of liberty could not be justified by reference to the State’s positive obligations under Articles 2 and 3 of the Convention. Referring, inter alia , to the Court’s findings in the cases of M. v. Germany (cited above, § 86) and Jendrowiak v. Germany (no. 30060/04, §§ 36-38, 14 April 2011), he stressed that Article 5 § 1 of the Convention contained an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty was lawful unless it fell within one of those grounds. Furthermore, as he would be expelled to Romania on his release from preventive detention to reside with his parents, it would no longer be necessary to protect the German public from him. (b)     The Government 69.     The Government argued that the applicant’s preventive detention in prison had not violated Article 5 § 1 of the Convention. 70.     The Government generally expressed doubts whether a narrow interpretation of sub-paragraphs (a) to (e) of Article 5 § 1 was necessary to protect individuals from arbitrary detention. That interpretation had to take into account the States’ duty, originating in human rights and, in particular, in Articles 2 and 3 of the Convention, to protect victims from further offences. 71.     In the Government’s view, the applicant’s detention had been justified under sub-paragraph (a) of Article 5 § 1