CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 septembre 2013

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GERMANY   (Application no. 17167/11)                 JUDGMENT       STRASBOURG   19 September 2013     FINAL   17/02/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of H.W. v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Ann Power-Forde,   André Potocki,   Paul Lemmens,   Helena Jäderblom,   Aleš Pejchal, judges , and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 August 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   17167/11) 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 German national, Mr H.W. (“the applicant”), on 10   March 2011. On 22 September 2011 the President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2.     The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, Ministerialrat , of the Federal Ministry of Justice. The applicant was granted leave on 13 January 2012 by the President of the Section to present his own case before the Court under Rule 36 § 2 in fine . 3.     The applicant alleged, in particular, that the domestic courts’ failure to comply with the statutory time-limit for review of the necessity of his preventive detention and their refusal to consult a medical expert on his dangerousness had violated Article 5 § 1 of the Convention. 4.     On 10 October 2011 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1959 and is currently detained in Berlin ‑ Tegel Prison. A.     The applicant’s previous convictions and the order for his preventive detention and execution thereof 6.     In 1995 the Braunschweig District Court convicted the applicant of attempted coercion and attempted extortion of a fourteen-year-old girl and three counts of sexual abuse of children by exhibitionist acts. It sentenced him to one year and three months’ imprisonment and granted probation. 7.     On 26 November 1997 the Berlin Regional Court convicted the applicant, inter alia , of rape of a woman and of sexual coercion and sexual abuse of a nine-year-old girl and of two ten-year-old girls in their respective apartments, combined with aggravated extortion in one case and aggravated robbery in the remaining three cases. It sentenced him to nine years and six months’ imprisonment and ordered his preventive detention under Article   66 § 2 of the Criminal Code (see paragraph 40 below). 8.     The Regional Court, having consulted a neurologic and psychiatric expert, K., found that the applicant, who had confessed to the offences, had acted with full criminal responsibility, but suffered from a dissocial and narcissistic personality disorder and a sexual deviation which necessitated psycho-therapeutic treatment. He had a propensity to commit serious offences, in particular sexual offences, and was therefore dangerous to the public. 9.     On 1 November 2007 the Berlin Regional Court ordered the execution of the preventive detention order in respect of the applicant. As regards the applicant’s continuing dangerousness, it referred to the report dated 29 May 1997 drawn up by psychiatric expert K. in the 1997 criminal proceedings. It considered the conclusions in that report to be still valid as there had not been any significant changes in the applicant’s personality and attitude, the applicant having refused to make any therapy in prison addressing his offences and the deficiencies in his character. As, in these circumstances, the preventive detention order could clearly not be suspended, it was unnecessary to obtain a new expert report (Article 463 § 3, third sentence, read in conjunction with Article 454 § 2 of the Code of Criminal Procedure; see paragraph 44 below). The Berlin Court of Appeal, endorsing the reasons given by the Regional Court, confirmed that decision on 21 December 2007. 10.     Since 24 December 2007 the applicant, having served the full sentence imposed on 26 November 1997 by the Berlin Regional Court and the sentence imposed in 1995 by the Braunschweig District Court (the suspension on probation having been revoked), has been in preventive detention in Berlin ‑ Tegel Prison. 11.     On 18 May 2009 the Berlin Regional Court dismissed a request made by the applicant under Article 458 § 1 of the Code of Criminal Procedure (see paragraph 43 below) to be released from preventive detention. The applicant had argued that his preventive detention was based on unconstitutional legal provisions. 12.     On 9 July 2009 the Berlin Court of Appeal dismissed the applicant’s appeal against that decision. B.     The proceedings at issue 1.     The decision of the Berlin Regional Court 13.     By two letters dated 29 September 2009 the applicant asked the Berlin Public Prosecutor’s Office and the Berlin Regional Court to inform him on the progress of the proceedings under Article 67e of the Criminal Code (see paragraph 42 below) for review of whether the further execution of the preventive detention order against him was necessary. He requested to appoint him a lawyer and to consult an expert on his dangerousness. He repeated his inquiry with the Regional Court by letter dated 7 November 2009. 14.     On 9 November 2009 the Berlin Regional Court asked the Berlin Public Prosecutor’s Office to obtain the information necessary for the conduct of the review proceedings. 15.     On 11 November 2009 the Berlin Public Prosecutor’s Office, having received the case-file containing documents on the execution of the applicant’s penalty from the Berlin Regional Court, asked the Berlin ‑ Tegel Prison authority to make a statement on the applicant’s situation and development in preventive detention. That request was not received by the said authority. 16.     On 17 November 2009 the Berlin Public Prosecutor’s Office informed the applicant that it would submit the case-file to the Regional Court once the Berlin ‑ Tegel Prison authority had made their necessary statement. 17.     By letter dated 2 December 2009, which was received by the Berlin ‑ Tegel Prison authority on 17 December 2009, the Public Prosecutor’s Office reiterated its request for a statement. It further made a copy of the file containing documents pertinent to the execution of the penalty for its own further use and sent the case-file to the Berlin Regional Court. The Regional Court received the file on 14 December 2009; the file was transferred to the competent chamber of the Regional Court on 29   December 2009. 18.     In the meantime, on 23 December 2009 the Berlin Court of Appeal dismissed a request made by the applicant in parallel proceedings to release him on 24 December 2009. The applicant had argued that the proceedings under Article 67e of the Criminal Code for review of whether his preventive detention was to continue had not been concluded within the statutory two ‑ year time-limit, which had expired on that day. Referring to the Federal Constitutional Court’s case-law (see paragraph 46 below), the Court of Appeal found that a potential violation of the constitutional right to liberty did not automatically warrant the applicant’s release from preventive detention. The interruption of the applicant’s preventive detention could only be ordered in proceedings under Article 458 of the Code of Criminal Procedure. The court therefore transferred the applicant’s request to the Public Prosecutor’s Office, before whom such proceedings had to be instituted. 19.     By letter dated 28 December 2009 the Berlin ‑ Tegel Prison authority submitted its statement to the Berlin Public Prosecutor’s Office. It recommended not suspending the further execution of the applicant’s preventive detention and not granting probation. As the applicant had not reflected on his offences and had not made any therapy, there was nothing to indicate that he was no longer dangerous to the public. It submitted that necessary therapeutic measures had not been carried out because the applicant did not trust the prison staff and had explained to be ready for treatment only with a therapist in whom he could trust fully. In 2002 the applicant had not been transferred to a social therapeutic institution because it appeared that the applicant, who had to be and could be treated, lacked sufficient motivation to undergo treatment. In 2006 the applicant had started monthly conversations with the psychological counselling service in prison. However, in view of the duty to treat information given by the applicant confidentially, it was unknown whether there had been any resulting positive developments. As the last report by expert K. had been drawn up in 1997 and the applicant had become older since then, the prison authority considered it useful to obtain a fresh expert report in order to examine whether there had been any changes in the applicant’s personality, even though such changes had not been observed in prison. 20.     On 30 December 2009 the Berlin Regional Court ordered that the file containing documents pertinent to the execution of the penalty be sent to the Berlin Constitutional Court on the latter’s request as the applicant had requested his release by way of an interim measure by that court. The Berlin Regional Court further appointed the applicant a counsel whom it granted access to the case-file. The applicant’s counsel consulted the file in early January 2010. 21.     On 8 January 2010 the Berlin Public Prosecutor’s Office dismissed the applicant’s request under Article 458 of the Code of Criminal Procedure to be released from preventive detention. The applicant had claimed that his preventive detention was no longer lawful and thus violated his right to liberty. He had complained that the courts dealing with the execution of sentences had failed to review the necessity of his continuing detention within the statutory time-limit under Article 67e of the Criminal Code. The Public Prosecutor’s Office stated that the applicant could only be released pending the review proceedings before the Regional Court if these proceedings had been delayed contrary to the rule of law and if interests of public security did not outweigh the applicant’s interests. Having regard to the serious offences the applicant had committed, the public interest in being protected from dangerous offenders outweighed his interest in personal liberty. 22.     In its statement of the same day, the Berlin Public Prosecutor’s Office requested the Regional Court to order the continuation of the applicant’s preventive detention and sent the Berlin-Tegel Prison authority’s statement to that court. 23.     On 14 January 2010 the Regional Court, having been returned the case-file from the Berlin Constitutional Court and having consulted the applicant’s counsel, fixed the hearing for review of the necessity of the applicant’s continuing preventive detention for 20 January 2010. 24.     The applicant subsequently asked the Regional Court to examine his request for release under Article 458 § 1 of the Code of Criminal Procedure in the hearing scheduled on 20 January 2010. 25.     On 20 January 2010 the Berlin Regional Court, having heard the applicant and his counsel in person, ordered the applicant’s preventive detention to continue and dismissed his request to interrupt the execution of that detention. 26.     The Regional Court found that the execution of the preventive detention order against the applicant could not be suspended on probation as it could not be expected that the applicant would not commit any further unlawful acts on his release (Article 67d § 2 of the Criminal Code; see paragraph 41 below). Having regard to the applicant’s conduct in prison and his written and oral statements before the court, it was likely that he would reoffend on his release. The applicant kept questioning the lawfulness of his preventive detention and of the underlying proceedings, considered the prison staff and the psychiatric expert consulted in the criminal proceedings as incompetent liars and was persistently unwilling to reflect on his offences. It was therefore not justified to make him start a social therapy. Having regard to these circumstances, the Regional Court did not consider it necessary to consult a psychiatric expert on the applicant’s dangerousness. 27.     Having regard to the foregoing, the Regional Court further declined to order an interruption of the execution of the preventive detention order against the applicant (Article 458 §§ 1 and 3 of the Code of Criminal Procedure). Relying on the Federal Constitutional Court’s case-law (see paragraphs 45-46 below), it found that the fact that the time-limit for review of the applicant’s detention under Article 67e §§ 1 and 2 of the Criminal Code had been exceeded by 27 days did not automatically warrant the applicant’s release. It considered that after receipt of the case-file, it had conducted the review proceedings speedily, having regard to the applicant’s constitutional right to liberty. It therefore had not displayed an unjustifiable disrespect in relation to the applicant’s procedural rights under Article 67e of the Criminal Code, which safeguarded his right to liberty, within the meaning of the Federal Constitutional Court’s case-law. It noted that the delays had in part been caused by the fact that the first request of 11   November 2009 for a statement sent by the Public Prosecutor’s Office to the Berlin-Tegel Prison had not been received by the latter. 2.     The decision of the Berlin Court of Appeal 28.     By letter dated 1 February 2010 the applicant, represented by counsel, lodged an appeal against the Regional Court’s decision, which he reasoned by submissions dated 12 March 2010. He complained about the Regional Court’s failure to draw any consequences from the fact that the time-limit under Article 67e of the Criminal Code for review of his preventive detention had been exceeded as a result of delays caused by the Public Prosecutor’s Office. 29.     On 17 June 2010 the Berlin Court of Appeal dismissed the applicant’s appeal. It endorsed the Regional Court’s finding that it could not be expected that the applicant would not commit any further unlawful acts on his release. Therefore, the continuation of his preventive detention had to be ordered (Article 67d § 2 of the Criminal Code). It found that the applicant had committed serious offences against the sexual self ‑ determination of others. The execution of the preventive detention order could therefore only be suspended and probation be granted if it was shown that the applicant had reflected on deficits in his personality and on his offences so that there was little risk that he reoffended. The statement of the Berlin-Tegel Prison authority and the applicant’s submissions to the court showed, however, that this was not the case and that he kept minimizing his crimes. As the applicant’s statements had clearly disclosed his continuing dangerousness, it was not yet necessary to consult an expert. The court referred to its decision of 21 December 2007 on that point. 30.     The Court of Appeal further found that the applicant’s appeal against the Regional Court’s decision under Article 458 of the Code of Criminal Procedure not to interrupt the execution of his preventive detention for failure to comply with the time-limit under Article 67e § 2 of the Criminal Code had become devoid of purpose. The Regional Court had ordered the continuation of his preventive detention in the meantime. The applicant’s preventive detention had also not become unlawful prior to the said decision of the Regional Court. It was based on the Berlin Regional Court’s judgment of 26 November 1997 convicting the applicant and ordering his preventive detention and on the Berlin Regional Court’s decision dated 1   November 2007 ordering the execution of that preventive detention order. 31.     The Court of Appeal conceded that the time-limit for review of the necessity of the applicant’s further preventive detention under Article 67e §§ 1 and 2 of the Criminal Code had been exceeded by 27 days. The delay had been caused by the belated submission of a statement by the Berlin ‑ Tegel Prison authority following a late reminder of the Berlin Public Prosecutor’s Office, whose first request for a statement had not been received by the prison authority. The procedure followed did not disclose a flagrant irregularity. It did not, therefore, entail the unlawfulness of the applicant’s preventive detention between the deadline for review of the applicant’s preventive detention on 24 December 2009 and the Regional Court’s decision on 20 January 2010. 32.     Relying on the Federal Constitutional Court’s case-law (see paragraphs 45-46 below), the Court of Appeal further found that the failure to comply with the time-limit under Article 67e of the Criminal Code had not violated the applicant’s constitutional right to liberty. Having regard to the procedure followed and the fact that the time-limit had been exceeded only by several days, the Regional Court had not unjustifiably disrespected the said provision of the Criminal Code, which safeguarded the constitutional right to liberty. That court thus had not displayed a fundamentally wrong view on the importance of that constitutional right. In any event, even a breach of the constitutional right to liberty would not have warranted the applicant’s release. Having regard to the seriousness of the applicant’s offences, the public interest in being protected from such offences would have outweighed the applicant’s interest in his personal liberty. 3.     The decision of the Federal Constitutional Court 33.     The applicant, who was no longer represented by counsel, subsequently lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Berlin Regional Court dated 20 January 2010 and of the Berlin Court of Appeal dated 17   June 2010. He argued, in particular, that his constitutional right to liberty had been violated. Since 24 December 2009 there was no longer a legal basis for his preventive detention, the deadline under Article 67e of the Criminal Code for review of the necessity of his continuing preventive detention having expired. He further complained that the proceedings before the courts dealing with the execution of sentences had been unfair as the courts had not sufficiently established the facts on which they had based their conclusion that he was still dangerous to the public. In particular, they had been unable to make a prognosis on his dangerousness without having consulted a psychiatric expert recently, the last expert report drawn up by expert K. dating from 1997. 34.     On 16 September 2010 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1566/10). C.     Subsequent developments 35.     In subsequent review proceedings under Article 67e of the Criminal Code instituted in August 2011, the Berlin Regional Court appointed an expert in October 2011 in order to assess the applicant’s dangerousness. The applicant refused to have himself examined by the expert in these proceedings and lodged several motions for bias. 36.     On 22 March 2012 the Berlin Regional Court ordered the applicant’s preventive detention to continue. II.     RELEVANT DOMESTIC LAW AND PRACTICE 37.     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 relevant to the present case can be summarised as follows. A.     The order of preventive detention by the sentencing court 38.     A sentencing court may, at the time of an offender’s conviction, order his preventive detention, known as a measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code). 39.     In particular, under Article 66 § 1 of the Criminal Code (in its version in force at the relevant time) the sentencing court orders preventive detention in addition to the penalty if someone is convicted of an intentional offence and sentenced 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. 40.     Pursuant to Article 66 § 2 of the Criminal Code, the sentencing court may also order preventive detention in addition to a penalty under the following conditions. The person concerned must have committed three intentional offences for which he or she incurred at least one year’s imprisonment respectively. He or she must be sentenced to at least three years’ imprisonment for one or more of these acts. Furthermore, owing to a propensity to commit serious offences, the person must present a danger to the general public within the meaning of Article 66 § 1. It is not necessary in this case that the person concerned was previously sentenced to a term of imprisonment or previously served a prison sentence as stipulated in Article   66 § 1. B.     Duration and judicial review of preventive detention 41.     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 or her release. 42.     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 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). 43.     Article 458 § 1 of the Code of Criminal Procedure provides that if objections are raised to the lawfulness of the execution of a penalty, a court decision shall be obtained. The further execution of the penalty shall not be suspended thereby; the court may, however, order a suspension of execution (Article 458 § 3 of the Code of Criminal Procedure). Pursuant to Article 463 § 1 of the Code of Criminal Procedure, Article 458 of that Code applies, mutatis mutandis , to the execution of measures of correction and prevention. 44.     Under Article 463 § 3, third sentence, read in conjunction with Article 454 § 2, of the Code of Criminal Procedure, the courts dealing with the execution of sentences have to consult an expert on the convicted person’s dangerousness in proceedings under Article 67d § 2 of the Criminal Code for review of a person’s preventive detention if they consider suspending the execution of the preventive detention order and granting probation. C.     Relevant case-law of the domestic courts 1.     Compliance with statutory time-limits for the review of detention 45.     The Federal Constitutional Court established the following principles in relation to the lawfulness of the further execution of a preventive detention order in cases in which the courts dealing with the execution of sentences failed to comply with the two-year time-limit under Article 67e of the Criminal Code for review of the question whether the preventive detention of the person concerned was still necessary in view of its objective (Article 67d of the Criminal Code). Disrespecting the said provisions on the periodic review of the execution of the preventive detention order may violate the constitutional right to liberty if there has been an unjustifiably wrong attitude towards the said procedural right which   discloses a fundamentally wrong view on the importance of the right to liberty (see Federal Constitutional Court, file no. 2 BvR 2004/04, decision of 16 November 2004, Neue Zeitschrift für Strafrecht – Rechtsprechungs ‑ Report ( NStZ-RR ) 2005, pp. 92-94, § 20 with further references; Federal Constitutional Court, file no. 2 BvR 1615/07, decision of 5 May 2008, § 17; see also Brandenburg Court of Appeal, file no.   1   Ws   34/09, decision of 12 March 2009). The Federal Constitutional Court further stressed that the provisions on periodic review of the execution of a preventive detention order served to safeguard the proportionality of restrictions to the constitutional right to liberty (see Federal Constitutional Court, file no. 2 BvR 2004/04, decision of 16   November 2004, ibid., § 20 with further references; and file no.   2   BvR   1615/07, decision of 5 May 2008, § 17). 46.     The Federal Constitutional Court further established that a violation of the constitutional right to liberty by the inaction of the courts dealing with the execution of sentences in the review proceedings did not automatically warrant the detainee’s release. At least if the public interest in being protected from serious unlawful acts outweighed the interests of the detainee because the review proceedings had only been delayed for a couple of months, the detainee’s release was not called for (see Federal Constitutional Court, file no. 2 BvR 2004/04, decision of 16   November 2004, ibid., § 28). 2.     Establishment of the facts in proceedings for judicial review of the necessity of further detention 47.     The Federal Constitutional Court reiterated that in proceedings for review of the necessity of a person’s further detention, the proportionality of restrictions to the constitutional right to liberty was further protected by the requirements of hearing the detainee in person and of the consultation of an expert on the detainee’s dangerousness in case the courts considered the suspension on probation of the detention order (see Federal Constitutional Court, file no. 2 BvR 2004/04, decision of 16 November 2004, ibid., § 20; file no. 2 BvR 1615/07, decision of 5 May 2008, § 17). 48.     The Federal Constitutional Court further found that in such proceedings, the courts dealing with the execution of sentences had to satisfy high standards in relation to the establishment of the truth (see Federal Constitutional Court, file no. 2 BvR 2004/04, decision of 16   November 2004, ibid., § 20; and file no. 2 BvR 1334/10, decision of 22   November 2011, § 13). It was, as a rule, for the competent judges to decide in which manner they sufficiently established the relevant facts. However, for decisions necessitating a prognosis in which mental abnormalities were at issue, the judges were, as a rule, under a duty to consult an experienced expert (see, inter alia , Federal Constitutional Court, file no. 2 BvR 2380/06, decision of 23 January 2008, § 26; file no.   2   BvR   2413/10, decision of 19 July 2011, § 15; file no. 2 BvR 1334/10, decision of 22 November 2011, § 15; and file no. 2 BvR 2521/11, decision of 19 June 2012, § 16, all concerning the review of a person’s detention in a psychiatric hospital; see also file no. 2 BvR 1615/07, decision of 5 May 2008, § 22). 49.     The Federal Constitutional Court further stressed that the longer a deprivation of liberty lasted, the stricter became the constitutional requirements for a sufficient reasoning and for a sufficient establishment of the relevant facts on which a decision to prolong a person’s deprivation of liberty was based. If a person was detained in the same institution for a long time, it was necessary to consult an external expert from time to time in order to prevent repetitive routine medical reports (see, inter alia , Federal Constitutional Court, file no. 2 BvR 983/04, decision of 14 January 2005, §   13; file no. 2 BvR 2413/10, decision of 19 July 2011, § 17; and file no.   2   BvR 2521/11, decision of 19 June 2012, § 17, all in relation to a person’s placement in a psychiatric hospital). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION ON ACCOUNT OF THE NON-COMPLIANCE WITH THE TIME ‑ LIMIT FOR JUDICIAL REVIEW 50.     The applicant complained that the courts dealing with the execution of sentences had breached his right to liberty and to a fair trial because they had failed to comply with the two-year time-limit under Article 67e of the Criminal Code for reviewing whether his preventive detention was still necessary. He relied on Articles 5, 6, 7 and 13 of the Convention in this respect. 51.     The Court considers that this complaint falls to be examined under Article 5 § 1 of the Convention alone, 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; ...” 52.     The Government contested that argument. A.     Admissibility 53.     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 54.     In the applicant’s submission, his preventive detention had breached his right to liberty under Article 5 of the Convention, in particular, because the Regional Court had failed to comply with the two-year time-limit laid down in Article 67e of the Criminal Code. He stressed that he had himself alerted the domestic authorities already in September 2009 that the time ‑ limit would expire soon, but the authorities had apparently started the review proceedings only in December 2009. It had been only after expiry of the time-limit on 23 December 2009 that he had been appointed a counsel, that the prison authority had sent a statement and that a hearing had been held by the Regional Court. He argued that the fact that correspondence between the authorities had not functioned properly did not justify their failure and unwillingness to comply with the two-year time-limit. The period of two years for review had not been used to conduct the proceedings in a timely manner. 55.     The applicant argued that Article 67e of the Criminal Code laid down a binding statutory time-limit. In a state governed by the rule of law, only the most serious emergency situations – which had not existed in his case – could justify the non-compliance with that time-limit. As the deprivation of his liberty was at issue, exceeding the time-limit by four weeks was inacceptable. Moreover, it was not foreseeable for how long the time-limit could be exceeded. There was therefore no longer a causal connection between his conviction and his continued preventive detention since 24 December 2009 and his detention was no longer lawful for the purposes of Article 5 § 1 of the Convention. Consequently, he should have been released on that day. The order of 20 January 2010 prolonging his preventive detention amounted to a retrospective order of preventive detention. 56.     The applicant further submitted that it happened regularly that the statutory time-limit for review of the necessity of a person’s continued preventive detention was not complied with. The time-limit in the subsequent review proceedings, which were currently pending, had again not been respected. (b)     The Government 57.     The Government took the view that the applicant’s preventive detention had complied with Article 5 § 1 of the Convention also after expiry of the two-year time-limit on 23 December 2009. The detention had been justified under sub-paragraph (a) of Article 5 § 1 as being detention after conviction by a competent court. There remained a sufficient causal connection between the applicant’s conviction on 26 November 1997 by the Berlin Regional Court and his preventive detention at issue. The Regional Court had ordered the applicant’s preventive detention following his conviction of rape and sexual assault without any maximum duration. Therefore, the fact that the time-limit for review of the applicant’s preventive detention had been exceeded by 27 days did not break the causal connection between the applicant’s conviction and his continued preventive detention. 58.     The Government further argued that the applicant’s preventive detention had been lawful under Article 5 § 1. The applicant’s preventive detention had been ordered by the Berlin Regional Court on 26 November 1997 under Article 66 § 2 of the Criminal Code. On 1 November 2007 that court had ordered the execution of the preventive detention order from 24   December 2007 onwards, when the applicant would have served his prison sentence. 59.     In the Government’s submission, the applicant’s preventive detention had remained lawful also from 24 December 2009 onwards, despite the fact that the time-limit under Article 67e §§ 1 and 2 of the Criminal Code for review of the applicant’s detention had been exceeded by 27 days. They stressed that under domestic law, the applicant’s preventive detention had remained lawful. As the time-limit had only been slightly exceeded and as the authorities and courts had taken that time-limit seriously and had made all efforts to comply with it, they had not had an unjustifiably wrong attitude towards the said procedural right which would have disclosed a fundamentally wrong view on the importance of the constitutional right to liberty. They referred to the Federal Constitutional Court’s case-law on that point (see paragraph 45 above). 60.     The Government stressed that the non-compliance with the time ‑ limit under Article 67e of the Criminal Code had occurred as a result of a number of unfavourable circumstances and misunderstandings between those involved in the proceedings. In particular, the Berlin-Tegel Prison authority had not received the prosecution’s first request to make a statement on the applicant’s situation and development in preventive detention, which had caused delay. Moreover, the Berlin Regional Court, when sending the case ‑ file containing documents pertinent to the execution of the penalty, instead of a copy of that file, to the Berlin Constitutional Court, had not yet known that the Berlin-Tegel Prison authority had sent their statement to the Public Prosecutor’s Office two days earlier. Despite this, the domestic authorities took the deadline laid down in Article 67e of the Criminal Code seriously: the Public Prosecutor’s Office made doubles of the file and the Berlin Regional Court set a date for a hearing of the applicant’s case speedily. In view of that, the applicant’s detention remained lawful under domestic law, as interpreted by the Federal Constitutional Court, despite the fact that the time-limit in Article 67e of the Criminal Code had been exceeded by a couple of days. 61.     In the Government’s submission, the applicant’s preventive detention at issue was also lawful for the purposes of Article 5 § 1 of the Convention. In particular, the deprivation of liberty had been foreseeable for the applicant. Since the judgment of 26 November 1997 has become final, the applicant had known that he would be remanded in preventive detention after having served his prison sentence if, and as long as, he did not fulfil the requirements for suspending the preventive detention order, namely that it was to be expected that he would not commit further unlawful acts on his release. The fact that Article 67e of the Criminal Code provided for a review of the necessity of the applicant’s continued preventive detention after two years did not mean that his preventive detention, ordered without any maximum duration, had been ordered for two years only. 62.     The Government further argued that the applicant’s deprivation of liberty between 24 December 2009 and 20 January 2010 had not been arbitrary. A delay of only 27 days between the expiry of the time-limit for review and the fresh decision in the review proceedings, having regard to the Court’s case-law, could not yet be considered as rendering the detention at issue unreasonable. The Government referred, in particular, to the Court’s judgment in the case of Rutten v. the Netherlands (no. 32605/96, 24 July 2001), and argued that the Court had considered in that judgment that a similar delay of one month did not render that applicant’s detention arbitrary. They stressed in that context that there had been a valid order for the applicant’s preventive detention also in the interim period, that detention having been ordered without a maximum duration. 63.     Finally, the Government conceded that in the review proceedings following the proceedings at issue in the present application, the time-limit of Article 67e of the Criminal Code had, regrettably, again been exceeded by some two months. The applicant had not, however, exhausted domestic remedies yet in respect of these new proceedings; in particular, he had not yet obtained a decision of the Federal Constitutional Court. 2.     The Court’s assessment (a)     Recapitulation of the relevant principles 64.     The Court reiterates that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Erkalo v. the Netherlands , 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI; Baranowski v.   Poland , no. 28358/95, § 50, ECHR 2000 ‑ III; and Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008). 65.     While it is normally in the first place for the national authorities, notably the courts, to interpret and apply domestic law, it is otherwise in relation to cases where, as under Article 5 § 1, failure to comply with that law entails a breach of the Convention. In such cases the Court can and should exercise a certain power to review whether national law has been observed (see Winterwerp v. the Netherlands , 24 October 1979, § 46, Series   A no. 33; Benham v. the United Kingdom , 10 June 1996, § 41, Reports 1996 ‑ III; and Baranowski , cited above, § 50). 66.     Compliance with the rules of national law primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Stafford v.   the   United Kingdom [GC], no. 46295/99, § 63, ECHR 2002 ‑ IV; and Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008). “Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur v. France , 25 June 1996, § 50, Reports 1996 ‑ III; Nasrulloyev v. Russia , no. 656/06, §   71, 11 October 2007; and Mooren v. Germany [GC], no. 11364/03, § 76, ECHR   2009 ‑ ...). 67.     Compliance with national law is not, however, sufficient: Article 5 §   1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp , cited above, §§ 37, 45; Erkalo , cited above, §§ 52, 56; Saadi, cited above, § 67; and Mooren , cited above, § 72). 68.     The Court has acknowledged that one of the relevant elements in assessing whether a person’s detention must be considered arbitrary for the purposes of Article 5 § 1 is the speed with which the domestic courts replaced a detention order which had either expired or had been found to be defective (see Koendjbiharie v. the Netherlands , 25 October 1990, § 27, Series A no. 185 ‑ B; Mooren , cited above, §§ 80-81; and Schönbrod v.   Germany , no. 48038/06, § 85, 24 November 2011). 69.     The Court thus found in the context of sub-paragraphs (a) and (e) of Article 5 § 1 that, for instance, a delay of eighty-two days between the expiry of the initial order of detention in a psychiatric institution and its renewal and the lack of adequate safeguards to ensure that the applicant’s detention would not be unreasonably delayed was inconsistent with the purpose of Article 5 § 1 to protect individuals from arbitrary detention (see Erkalo , cited above, §§ 56-60). The applicant’s detention during the period between the expiry of the initial detention order and the date on which the first-instance court extended his placement in a psychiatric institution was therefore considered unlawful for the purposes of Article 5 § 1 (see Erkalo , cited above, § 60). 70.     The Court further found that a delay of some nine and a half months between the date on which the applicant had fully served his term of imprisonment and the decision that the preventive detention order made in the sentencing court’s judgment should be executed had rendered the applicant’s detention arbitrary and thus unlawful for the purposes of Article   5 § 1 in the interim period (see Schönbrod , cited above, §§   103 ‑ 109). 71.     In contrast, the Court considered that an interval of two weeks between the expiry of the earlier order of detention in a psychiatric hospital and the making of the succeeding renewal order could not be regarded as unreasonable or excessive, so that this delay did not involve an arbitrary deprivation of liberty (see Winterwerp , cited above, § 49, in the context of sub-paragraph (e) of Article 5 § 1 alone). 72.     Likewise, a delay of approximately one month between the expiry of an order to confine the applicant to a secure institution and its extension was found not to render arbitrary the deprivation of liberty at issue in the particular circumstances of the case (see Rutten v. the Netherlands , no.   32605/96, §§ 39-47, 24 July 2001). 73.     In addition to the speed with which the domestic courts replaced a detention order which had either expired or had been found to be defective, the Court has previously considered, inter alia , the following elements to be relevant in assessing whether a person’s detention must be considered as arbitrary for the purposes of Article 5 § 1 in the circumstances of the case. It notably took into account whether there had been adequate safeguards to ensure that the applicant’s release from detention would not be unreasonably delayed (see, Erkalo , cited above, §§ 57, 59). Moreover, it considered whether the applicant contributed in any way to the delays caused in the procedure (see Schönbrod , cited above, § 107) or objected to a foreseeable delay in the proceedings (see Rutten , cited above, § 45). The Court further took into account whether the delay could be attributed to the complexity of the proceedings (see Schönbrod , cited above, § 107). (b)     Application of these principles to the present case 74.     In determining whether the applicant, during his preventive detention at issue, was deprived of his liberty in accordance with Article 5 §   1 of the Convention, the Court notes that the applicant’s preventive detention was ordered by the Berlin Regional Court on 26 November 1997 together with his conviction, in particular, of rape and sexual coercion and abuse of children. It therefore fell within the ambit of sub-paragraph (a) of Article 5 § 1. 75.     Having regard to the applicant’s argument that his preventive detention had violated Article 5 because the domestic courts had failed to comply with the two-year time-limit under Article 67e of the Criminal Code for reviewing whether that detention was still necessary, the Court shall examine, first, whether the applicant’s detention was “lawful” and “in accordance with a procedure prescribed by law” as required by Article 5 §   1. 76.     The Court observes that on 24 December 2009, when the two-year time-limit under Article 67e of the Criminal Code for review of whether the execution of the applicant’s preventive detention should be suspended expired, the Berlin Regional Court had not yet taken its decision under Article 67d § 2 of the Criminal Code. It was on