CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 novembre 2013

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GERMANY   (Application no. 7345/12)               JUDGMENT       STRASBOURG   28 November 2013         FINAL   28/02/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Glien v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ann Power-Forde,   Ganna Yudkivska,   Helena Jäderblom,   Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 5 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 7345/12) 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 Christian Glien (“the applicant”), on 30 January 2012. 2.     The applicant, who had been granted legal aid, was represented by Mr   D. Walker, a lawyer practising in Betzdorf. The German Government (“the Government”) were represented by one of their Agents, Ms K. Behr, Regierungsdirektorin , of the Federal Ministry of Justice. 3.     The applicant alleged that his preventive detention, which had been extended retrospectively beyond a period of ten years, the maximum for such detention under the legal provisions applicable at the time of his offences and conviction, violated Article 5 § 1 and Article 7 § 1 of the Convention. 4.     On 14 June 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1947 and is currently detained in Diez Prison. A.     The applicant’s previous convictions and the order for his preventive detention and execution thereof 6.     Following several convictions mainly of property offences, the applicant was found guilty by the Frankfurt am Main District Court on 16   February 1984, in particular, of sexual abuse of children and dissemination of pornographic documents and sentenced to ten months’ imprisonment. He was notably found to have shown pornographic films to children aged twelve to sixteen. 7.     On 17 December 1997 the Hanau Regional Court convicted the applicant of eleven counts of sexual abuse of children, committed between July 1986 and December 1996. It sentenced him to four years’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraph 34 below). 8.     The Regional Court found that the applicant had partly masturbated boys aged six to thirteen and had partly incited them to commit acts of a sexual or masochist nature on him in his apartment. He had recorded the acts on video and shown them to other minors. The applicant, who had been diagnosed by psychiatric expert R. with a sexual deviation with paedophile and masochist elements which was not so severe as to be pathological, had acted with full criminal responsibility. 9.     The Regional Court further considered that the applicant’s preventive detention was necessary. He had a propensity to commit further similar offences, which he considered as harmless and not necessitating punishment, by which the children concerned could suffer serious psychological damage. 10.     On 27 October 2001 the applicant, having fully served his prison sentence, was placed for the first time in preventive detention, executed initially in Werl Prison and since 19 January 2004 in Diez Prison. 11.     The continuation of the applicant’s preventive detention in prison was ordered by the courts dealing with the execution of sentences at regular intervals. It was ordered, in particular, by the Koblenz Regional Court on 3   February 2011, based on a report dated 1 December 2010 by a psychiatric expert, V. B.     The proceedings at issue 1.     The decision of the Koblenz Regional Court 12.     On 9 and 23 May 2011 the applicant, referring to the Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 (see paragraphs 42-48 below), requested the Koblenz Regional Court to order his release immediately. 13.     On 16 September 2011 the Koblenz Regional Court, having heard the applicant in person, his counsel and an external psychiatric expert, V., ordered the applicant’s preventive detention to continue (Article 67 d § 3 of the Criminal Code; see paragraph 37 below). 14.     The Regional Court found that the applicant would have served ten years in his first preventive detention by 26 October 2011. This had been the maximum duration for such detention at the time of the applicant’s offences and conviction under Article 67 § 3 of the Criminal Code in the version then in force, which had, however, been abolished in January 1998 (see paragraph 36 below). 15.     The Regional Court further noted that the stricter standards set by the Federal Constitutional Court in its leading judgment of 4 May 2011 for a continuation of preventive detention beyond that time-limit (see paragraph   44 below) had been met in the applicant’s case. It was still highly likely that the applicant, owing to specific circumstances relating to his conduct, would commit the most serious offences against the sexual self ‑ determination of children, by which the victims would severely be harmed mentally and physically. Despite the fact that he had been in preventive detention for almost ten years, it was very likely that he would commit further serious acts of sexual abuse of children. 16.     In this respect, the Regional Court endorsed the findings made in the report submitted by psychiatric expert V. on 1 December 2010, following an examination of the applicant, and his additional report dated 2 August 2011, drawn up on the basis of the case-file as the applicant had refused another examination. In his reports, the expert, having regard to the common instruments for the classification of diseases ( inter alia , the ICD-10 and the psychopathy checklist), had considered the applicant as dangerous for being a psychopath and as suffering from paedophilia towards boys and from a dissocial personality, which could not be considered as pathological. His dissocial personality was characterised by continuous irresponsibility and disregard for social rules and obligations, his inability to maintain long-term relationships, his inability to feel guilty and to learn from experience, as well as his tendency to blame others and to superficially rationalise his own behaviour. 17.     Expert V. had further noted that the therapy offered to the applicant in prison had been discontinued in 2004 after one year of treatment as the applicant kept justifying his offences, denied any paedophile behaviour and lacked empathy. Despite his age, there was therefore a medium to high probability that the applicant would reoffend. Despite the fact that the applicant had not used physical violence when committing his offences, there had been body contacts and sexual violence in that he had used children to satisfy his sexual desires. A therapy of the applicant did not appear possible in view of his attitude. It was therefore still highly likely that the applicant would commit further serious sexual offences if released. 18.     The Regional Court further considered that, in accordance with the requirements set out in the Federal Constitutional Court’s judgment of 4   May 2011, the applicant suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act (see paragraph 39 below). That mental disorder did not have to diminish the applicant’s criminal responsibility. Psychiatric expert V. had explained in his additional report that the applicant suffered from paedophilia towards boys, which was a sexual deviation, and a dissocial personality. These were not pathological, but were mental disorders for the purposes of the Therapy Detention Act, which had been phrased by reference to Article 5 § 1 (e) of the Convention. The applicant’s dangerousness was a result of these mental disorders. 19.     Moreover, as all attempts for a therapy had been fruitless and as there was a high risk that the applicant would commit serious sexual offences against children, the applicant’s continued preventive detention was also proportionate. 2.     The decision of the Koblenz Court of Appeal 20.     On 5 December 2011 the Koblenz Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed that the paedophilia the applicant had been diagnosed with, against the background of a dissocial personality, had to be classified as a mental disorder for the purposes of Article 1 § 1 of the Therapy Detention Act. As the applicant still considered the acts he had been convicted of to be punishable, but not harmful for the children concerned and claimed that any treatment was therefore unnecessary, it was almost certain that he would commit further similar offences if released. There was no high risk that the applicant would commit violent offences against children as he had not used violence against his victims in the past. However, it was highly likely that he would commit acts such as masturbation involving children and recording of pornographic videos of children, which had to be classified as most serious sexual offences as they could cause particularly serious damage to the mental development of children. 3.     The decision of the Federal Constitutional Court 21.     On 10 December 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed, in particular, that his continued preventive detention beyond the ten-year maximum period applicable at the time of his offences was disproportionate and had breached his right to liberty and the prohibition of retrospective punishment as protected by the Basic Law and by Articles 5 § 1 and 7 § 1 of the Convention. He referred to this Court’s judgment of 17 December 2009 in the case of M. v. Germany (no. 19359/04, ECHR 2009) and to the Federal Constitutional Court’s leading judgment of 4 May 2011 on preventive detention (see paragraphs 42-48 below) to support his view. 22.     On 19 January 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2754/11). C.     Subsequent developments 23.     On 26 April 2012 the Koblenz Regional Court again ordered the applicant’s preventive detention to continue. It found that there had not been any changes in the applicant’s attitude towards his offences and considered that the requirements for the applicant’s further preventive detention as set out in the Koblenz Court of Appeal’s decision dated 5 December 2011 were still met. On 21 June 2012 the Koblenz Court of Appeal dismissed the applicant’s appeal against that decision. On 4 October 2012 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1696/12). 24.     On 25 January 2013 the Koblenz Regional Court ordered another time that the applicant’s preventive detention was to continue as the conditions therefor, as set out in its previous decisions, were still met. On 8   March 2013 the Koblenz Court of Appeal dismissed the applicant’s appeal. D.     The conditions of the applicant’s detention during the execution of the preventive detention order 25.     Since January 2004 the applicant is detained in a separate wing of Diez Prison for persons in preventive detention. 26.     In 2004 the applicant underwent a therapy for sexual offenders in prison. That therapy was discontinued in 2005 following conflicts with the psychologist as the applicant had not changed his attitude towards his offences. 27.     On 17 February 2005 the Koblenz Regional Court found that the applicant rejected any offers for treatment. On 14 May 2007 it confirmed that the applicant had not made any attempts whatsoever to confront himself with his criminal conduct. 28.     Following signs of some positive changes in his personality following a number of meetings with the prison’s social service, the applicant was permitted to leave the prison for one to two days under the supervision of the prison staff in May and September 2011 and in February 2012. However, he discontinued the meetings when it became clear that he would not be released after having spent ten years in preventive detention. 29.     According to the findings of the Koblenz Regional Court in the proceedings at issue, the applicant was not currently undergoing any therapy in Diez Prison as he considered himself not to be in need of treatment. He has been meeting and discussing with a social worker in prison once in a fortnight. 30.     At present, the prison’s psychological and social services have regular conversations with the applicant in order to attempt to motivate him to undergo further treatment. 31.     On 7 June 2013 the applicant was transferred to a new building which had been erected on the premises of Diez Prison in order to comply with the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment. In that building detainees are, in particular, provided with rooms measuring 18   m² and large spaces for indoor and outdoor leisure activities and have access to staff members of the psychiatric, psychological and social services. II.     RELEVANT DOMESTIC LAW AND PRACTICE 32.     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). The provisions referred to in the present case provide as follows: A.     The order of preventive detention by the sentencing court 33.     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). 34.     In particular, the sentencing court may order preventive detention in addition to the penalty under Article 66 § 2 of the Criminal Code if the person concerned committed three intentional offences for each of which he incurred a term of imprisonment of at least one year and if the person is sentenced for one or more of these offences to at least three years’ imprisonment. In addition, a comprehensive assessment of the person 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 person presents a danger to the general public. It is not necessary under that provision that the perpetrator has been previously convicted or detained. B.     Judicial review and duration of preventive detention 35.     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 shall 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). 36.     Under Article 67d § 1 of the Criminal Code, in the version in force prior to 31 January 1998, the first period of preventive detention could not exceed ten years. If the maximum duration had expired, the detainee was to be released (Article 67d § 3). 37.     Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the offender’s conduct. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a (3) of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis . C.     The detention of mentally ill persons 38.     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. 39.     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. 40.     Under section 2 of the Therapy Detention Act, establishments suitable for therapy detention are only institutions which, in particular, can guarantee, by their medical and therapeutic offers, an adequate treatment of the mental disorder of the person concerned on the basis of an individualised plan for treatment and aimed at keeping the therapy detention to a minimum. Furthermore, the institutions concerned must allow detention to be executed in the least burdensome manner possible for the detainee, having regard to therapeutic aspects and to the interests of public security. D.     Transfer for enforcement of a different measure of correction and prevention 41.     Article 67a of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, of the Criminal Code, the court may subsequently transfer a person against whom preventive detention was ordered to a psychiatric hospital or to a detoxification facility (see Article 64 of the Criminal Code) if the person’s reintegration into society can be better promoted thereby. The court may quash that decision if it later emerges that no success can be achieved by placing the person in a psychiatric hospital or a detoxification facility (Article 67a § 3). E.     Recent case-law of the Federal Constitutional Court 1.     The Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 42.     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. 43.     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. 44.     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, 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. 45.     In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law ( völkerrechtsfreundliche Auslegung ; ibid., § 89). It stressed that, in line with that openness of the Constitution to public international law, it attempted to avoid breaches of the Convention in the interpretation of the Constitution (ibid., §§ 82 and 89). 46.     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). 47.     The Federal Constitutional Court confirmed its constant case-law that the absolute ban on the retrospective application of criminal law under Article 103 § 2 of the Basic Law did not cover preventive detention. The   latter was a measure of correction and prevention, which was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender (see §§ 100-101 and 141 ‑ 142 of the Federal Constitutional Court’s judgment). The Federal Constitutional Court noted that the European Court of Human Rights had considered preventive detention to be a “penalty” within the meaning of Article 7 § 1 of the Convention (ibid., §§ 102, 140). It considered that it was not necessary schematically to align the meaning of the constitutional notion of “penalty” to that under the Convention. Recourse should rather be had to the valuations ( Wertungen ) under the Convention in a result-oriented manner in order to prevent breaches of public international law (ibid., §§ 91 and 141 ss.). 48.     Having regard to the constitutional protection of legitimate expectations in a State governed by the rule of law and the valuations of Article 5 and Article 7 of the Convention, the prolongation of the complainants’ preventive detention beyond the former ten-year maximum period, in particular, was only constitutional in practice if, inter alia , the requirements of Article 5 § 1 (e) were met (ibid., §§ 143 and 151-156). The Federal Constitutional Court expressly referred in that context to the case ‑ law of the European Court of Human Rights according to which the detention of a person as a mental health patient would only be lawful for the purposes of Article 5 § 1 (e) of the Convention if effected in a hospital, clinic or other appropriate institution (ibid., § 155). 2.     The decision of 15 September 2011 49.     In a decision of 15 September 2011 (file no. 2 BvR 1516/11), the Federal Constitutional Court, referring to its judgment of 4 May 2011 (cited above), reiterated that a prolongation of a person’s preventive detention beyond the former ten-year time-limit applicable at the time of his conviction was only possible if the requirements of Article 5 § 1 (e) of the Convention were met. 50.     The Federal Constitutional Court further clarified that the notion of persons “of unsound mind” in Article 5 § 1 (e) of the Convention had been taken up by the legislator in section 1 § 1 of the Therapy Detention Act. In that Act, the legislator had created a new category of “mental disorder” which did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code. Specific disorders in a person’s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act. This notion therefore was not limited to mental illnesses which could be treated clinically, but extended also, in particular, to dissocial personality disorders. 3.     The decision of 11 July 2013 concerning the compatibility with the Basic Law of section 1 § 1 of the Therapy Detention Act 51.     By a decision dated 11 July 2013 the Federal Constitutional Court found that section 1 § 1 of the Therapy Detention Act (see paragraph 39 above) was compatible with the Basic Law on the condition that it was interpreted in the following restrictive manner (file no. 2 BvR 2302/11 and 2 BvR 1279/12). Detention or its prolongation under that Act could only be ordered if there was a difference between such detention and detention for serving a term of imprisonment. Furthermore, there must be a high risk that the persons concerned, owing to specific circumstances relating to their person or their conduct, would commit the most serious crimes of violence or sexual offences. In addition, the requirements of Article 5 § 1 (e) of the Convention had to be met. The principles developed in respect of preventive detention which had been ordered or prolonged retrospectively (see paragraph 44 above) thus equally applied to detention under the Therapy Detention Act. 52.     The Federal Constitutional Court reiterated in that context that the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act, having regard to the standards flowing from Article 5 § 1 (e), did not require that the disorder was so serious as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code. It further referred to the Court’s case-law relating to Article 5 § 1 (e) (in particular, to Kronfeldner v. Germany , no. 21906/09, 19 January 2012; and B v. Germany , no. 61272/09, 19 April 2012) and found that the detention of a person for being “of unsound mind” could be justified provided that the detention was effected in an appropriate psychiatric institution, which, in turn, necessitated a corresponding intensity of the mental disorder. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 53.     The applicant complained that his disproportionately long preventive detention, and in particular his detention beyond the period of ten years, which had been the maximum for such detention under the legal provisions applicable at the time of his offences and conviction, had breached his right to liberty as provided in Article 5 § 1 of the Convention. That provision 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 55.     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 56.     The applicant argued that his preventive detention had breached Article 5 § 1 of the Convention. He referred to the Court’s findings in the case of M. v. Germany (cited above) and stressed that the facts of that and of his case were comparable. References to efforts made by the Government and the legislator to establish a difference between the execution of preventive detention and that of prison sentences in the future could not undo the Convention violations suffered by him. 57.     In the applicant’s submission, his preventive detention from 26   October 2011 onwards was not justified under any of the sub ‑ paragraphs   (a) to (f) of Article 5 § 1. In particular, it did not meet the requirements of sub-paragraph (a) of Article 5 § 1. Following the expiry of the ten-year maximum duration for preventive detention under Article 67d §§ 1 and 3 of the Criminal Code in the version in force at the time of his conviction (see paragraph 36 above), there was no longer a sufficient causal connection between his conviction in 1997 and his continued preventive detention. 58.     The applicant further took the view that his preventive detention had not been justified under sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind” either. He submitted that following the Court’s judgment in the case of M. v. Germany (cited above), difficult detainees were now “reclassified” as being persons of unsound mind in order to allow their detention to be prolonged beyond the former ten-year maximum duration. His continuing preventive detention was no longer proportionate. He submitted that there was no very high risk that he would commit the most serious violent or sexual offences if released. The fact alone that he had not completed a therapy was insufficient to prove this. The domestic courts had only considered that there was a medium to high risk that he would commit further sexual offences if released. Moreover, he was ready to undergo a therapy and to take medication once released from prison and to comply with further orders such as to stay away from schools etc. Furthermore, he was of advanced age and in a poor state of health. His preventive detention therefore had to be terminated also under the requirements set by the Federal Constitutional Court in its leading judgment of 4 May 2011. 59.     The applicant also submitted that under the Court’s case-law, the detention of a person as a mental health patient was only covered by sub ‑ paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (he referred to the case of Kallweit v. Germany , no.   17792/07, 13 January 2011 in this respect). As he had been detained in a separate wing of Diez Prison, his detention was not covered by that provision. 60.     Moreover, the applicant argued that his detention was not “lawful” for the purposes of Article 5 § 1. He could not have foreseen at the time of his offences that, as a result of a subsequent change in the law, these could lead to his preventive detention for an indefinite duration. (b)     The Government (i)     Detention of a person “of unsound mind” 61.     In the Government’s submission, the applicant’s preventive detention after expiry of the former ten-year time-limit on 26 October 2011 complied with Article 5 § 1. It was justified under sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”. As established by the Koblenz Court of Appeal on 5 December 2011 with the help of the report of expert V. of 2 August 2011, the applicant suffered from paedophilia and a dissocial personality disorder as defined by the relevant tools for the classification of diseases (in particular, the ICD-10) and thus from a mental disorder. The expert had found that the applicant was fixated on boys aged between six and sixteen. His dissocial personality manifested itself in continuous irresponsibility and disregard for social rules and obligations, his inability to maintain long-term relationships, his inability to feel guilty and to learn from experience, as well as his tendency to blame others and to superficially rationalise his own behaviour. 62.     The Government argued that as a result of his mental disorder within the meaning of the Therapy Detention Act (see paragraph 39 above), the applicant was to be classified as a person “of unsound mind” for the purposes of Article 5 § 1 (e). It was not necessary, in order to comply with the requirements of the latter provision, that the disorder led to a lack of or diminished criminal responsibility under Articles 20 and 21 of the Criminal Code. Even a person who was capable of appreciating the wrongfulness of his acts and of acting in accordance with that appreciation and was therefore fully criminally liable when committing his offence could suffer from a mental disorder as a result of which there was a high risk that he committed the most serious violent or sexual offences. This interpretation had been confirmed by the Federal Constitutional Court in a decision of 15   September 2011 (file no. 2 BvR 1516/11, see paragraph 50 above). 63.     The Government objected to the applicant’s allegation that all difficult detainees were now considered as suffering from a mental disorder so that their preventive detention could be prolonged beyond ten years. The   applicant had been diagnosed as having paedophile tendencies already by the sentencing Hanau Regional Court in 1997. Moreover, 88 out of 102 persons in preventive detention, whose cases were parallel to that of M. v.   Germany (cited above) and who had still been in preventive detention at the time that judgment became final on 10 May 2010, had been released by mid-2012 as a result of the requirements set by the Court and by the Federal Constitutional Court. 64.     The Government further submitted that the additional criteria developed in the Court’s case-law (they referred to Winterwerp v.   the   Netherlands , 24 October 1979, § 37, Series A no. 33) for the applicant’s detention to be justified under Article 5 § 1 (e) were equally met. The applicant’s mental disorder warranted his compulsory confinement and his continued confinement was dependent on the persistence of his mental disorder. As the domestic courts had convincingly found with the help of medical experts in their decisions at issue, there was a very high risk that the applicant, who was unable to accept the wrongfulness of his acts and still denied having harmed his victims thereby, would commit further sexual offences if released. These offences had to be considered as most serious owing to the serious consequences they would have for their young victims. (ii)     Appropriate institution for a mental health patient 65.     The Government further took the view that the applicant’s preventive detention, unlike that of the applicant in the case of M. v.   Germany (cited above), was justified under Article 5 § 1 (e) despite the fact that it was not executed in a hospital, but in Diez Prison. They noted that the Court had repeatedly found that the detention of a person as a mental health patient was only lawful if effected in a hospital, clinic or other appropriate institution (reference was made, in particular, to the case of Kallweit , cited above, §§ 46 ss.). 66.     The Government stressed that, by its decision dated 4 May 2011, the Federal Constitutional Court had obliged the legislator to set up a new system of preventive detention in which the detainees were motivated to undergo intensive treatment and therapy until the end of May 2013 at the latest. Accordingly, on 7 March 2012 the Government had submitted to the Federal legislator a draft Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences ( Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung ) which was being examined by Parliament at the time of their submissions to the Court. Likewise, the Land Rhineland-Palatinate (in which Diez Prison was situated) had drafted an act on the enforcement of preventive detention to implement the new federal legislation. The Federal Constitutional Court had thus paved the way so that in cases as the present one preventive detention was only executed if it was justified under sub-paragraph (e) of Article 5 §   1. The implementation of a difference between the execution of penalties and of preventive detention guaranteed that the institutions in which preventive detention was executed against persons suffering from a mental disorder were suitable institutions for the purposes of Article 5 § 1 (e). 67.     However, the situation could not be changed overnight. In the transitional period, the Federal Constitutional Court had therefore permitted the continuing execution of preventive detention under restrictive conditions as the authorities and courts would be faced with problems which could hardly be solved if all persons in preventive detention were to be released immediately. The Government considered that the Court had accepted this approach in its case-law. A transitional period was necessary in order for the respondent State to comply with its duty under Article 3 to protect the public from most dangerous offenders. Therefore, the Court equally had to give Member States sufficient time to fully implement its case-law. 68.     The Government also explained that in 2012/2013 a new building for the enforcement of preventive detention was being built on the premises of Diez Prison at a total expense of 20 million euros, including, in particular, rooms measuring 18 m² and large spaces for indoor and outdoor leisure activities. A multidisciplinary staff would work in that unit. The applicant was transferred to that new building on 7 June 2013. 69.     The Government further submitted that the execution of preventive detention against the applicant in a separate wing of Diez Prison, having regard to the offers of therapy and leisure-time activities, had differed substantially from the execution of a term of imprisonment already at the time at issue in the present application. Persons in preventive detention as the applicant could leave their living spaces most of the time during the day, move within the prison wing and use the courtyard whenever they wished, and not only one hour per day. They could use a recreation room, a gym and the unit’s kitchen and had more wide-ranging shopping opportunities than persons serving a term of imprisonment. They could further furnish their living spaces more individually and keep birds. Furthermore, they could telephone their relatives and friends almost without restriction. 70.     As regards the execution of preventive detention in the applicant’s case, the Government submitted that the prison staff still attempted to build up the applicant’s willingness and ability to undergo therapy. Referring to the authorities’ and domestic courts’ findings in this respect (see paragraphs   26-30 above), the Government argued that the applicant had, however, lacked motivation to undergo therapy since his conviction of sexual abuse of children in 1984. Consequently, the applicant had been detained in an institution suitable for him for the purposes of Article 5 §   1   (e) as, given his lack of motivation to undergo therapy, he could not have profited from further offers of long-term treatment. 2.     The Court’s assessment (a)     Recapitulation of the relevant principles 71.     The Court reiterates that Article 5 § 1 sub-paragraphs (a) to (f) contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia , Guzzardi v. Italy , 6 November 1980, § 96, Series A no. 39; Witold Litwa v. Poland , no. 26629/95, § 49, ECHR   2000 ‑ III; Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008; and Del Rio Prada v. Spain [GC], no. 42750/09, § 123, 21   October 2013). Only a narrow interpretation of the exhaustive list of permissible grounds for deprivation of liberty is consistent with the aim of Article 5, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Winterwerp v. the Netherlands , 24 October 1979, § 37, Series A no. 33; Guzzardi , cited above, § 98; and Shimovolos v.   Russia , no. 30194/09, § 51, 21 June 2011). 72.     The Court further reiterates that the term “persons of unsound mind” in sub-paragraph (e) of Article 5 § 1 does not lend itself to precise definition since its meaning is continually evolving as research in psychiatry progresses (see Winterwerp , cited above, § 37; and Rakevich v. Russia , no.   58973/00, § 26, 28 October 2003). An individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp , cited above, § 39; and Stanev v.   Bulgaria [GC], no. 36760/06, § 145, ECHR 2012). 73.     A mental disorder may be considered as being of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary as the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (compare, for example, Witold Litwa , cited above, § 60; and Hutchison Reid v. the United Kingdom , no.   50272/99, § 52, ECHR 2003 ‑ IV). 74.     In deciding whether an individual should be detained as a person “of unsound mind”