CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 janvier 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sB1AFDE2D { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:14pt } .s2348ECBC { width:232.5pt; display:inline-block } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB206C230 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s572ECADF { width:169.28pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIFTH SECTION           CASE OF BERGMANN v. GERMANY   (Application no. 23279/14)                 JUDGMENT       STRASBOURG   7 January 2016     FINAL   07/04/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Bergmann v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President,   Angelika Nußberger,   Khanlar Hajiyev,   Faris Vehabović,   Yonko Grozev,   Síofra O’Leary,   Carlo Ranzoni, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 1 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 23279/14) 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 Karl-Heinz Bergmann (“the applicant”), on 18 March 2014. 2.     The applicant, who had been granted legal aid, was represented by Mr   A. Sommerfeld, a lawyer practising in Soest (Germany). The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice and Consumer Protection. 3.     The applicant alleged that the retrospective prolongation of his preventive detention, in the Rosdorf centre for persons in preventive detention, beyond the former statutory ten-year maximum duration breached his right to liberty under Article 5 § 1 of the Convention and the prohibition on retrospective punishment under Article 7 § 1 of the Convention. 4.     On 17 June 2014 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1943 and is currently detained in the centre for persons in preventive detention on the premises of Rosdorf Prison (hereinafter the “Rosdorf preventive detention centre”). A.     The applicant’s previous convictions, the order for his preventive detention and its enforcement 6.     Between 1966 and 1984, the applicant was convicted by the criminal courts five times. He was found guilty of sexual assault of a seven-year-old girl and attempted rape of a fourteen-year-old girl, committed under the influence of alcohol, and of attempted sexual acts with a thirteen-year-old boy. He was found to have committed other unlawful acts, including arson and strangulating a ten-year-old boy during a burglary, but was not held criminally liable because he had been drunk. He was sentenced, in particular, to terms of imprisonment ranging from six months to ten years. 7.     On 18 April 1986 the Hanover Regional Court convicted the applicant of two counts of attempted murder, combined with attempted rape in one case, and of two counts of dangerous assault. It sentenced him to fifteen years’ imprisonment and ordered his preventive detention under Article   66   §   2 of the Criminal Code (see paragraph 46 below). 8.     The Regional Court found that between 7 July 1985 and 3 October 1985, the applicant had stabbed a nineteen-year-old female cyclist in the back in a life-threatening manner for sexual gratification; had stabbed a male cyclist he had mistaken for a woman twice in the back and at the temple, again for sexual gratification; and had stabbed a twenty ‑ three   ‑ year ‑ old woman three times in a life-threatening manner in an attempt to rape her. He had committed those offences under the influence of alcohol in a park in Hanover. Still drunk, he had then broken into a house, strangulated a four-year-old girl and had injured her with a knife below the waist for sexual gratification. He was arrested on 9 October 1985. 9.     Having consulted two medical experts, the Regional Court found that at the time of committing the offences, the applicant had been in a state of diminished criminal responsibility (Article 21 of the Criminal Code, see paragraph 62 below). He was diagnosed with sexual deviance, a personality disorder and psycho-organic syndrome, which was probably a consequence of his longstanding alcohol abuse. As long as the applicant did not drink alcohol, those abnormalities did not affect his criminal responsibility as he was able to control his aggression. However, combined with the consumption of alcohol, they led to his criminal responsibility being diminished. 10.     The Regional Court decided to order the applicant’s preventive detention under Article 66 §   2 of the Criminal Code. It considered that as a result of his personality disorder, the applicant had a propensity to commit serious offences which seriously harmed the victims both physically and mentally. As confirmed by the two medical experts, there was a high risk that if released, the applicant would commit further violent offences for sexual gratification under the influence of alcohol, similar to those of which he had been found guilty. He therefore presented a danger to the general public. 11.     Lastly, the Regional Court decided not to order the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code (see   paragraph 63 below). The court endorsed the experts’ finding that the applicant’s personality disorder could no longer be treated because his sexually deviant aggressive behaviour had lasted for decades and because he would be unable to pursue psychotherapy in view of his limited intellectual capacity. Public security could therefore be better safeguarded by placing the applicant in preventive detention. 12.     The applicant served his full term of imprisonment, and on 12 June 2001 he was placed for the first time in preventive detention, for which he was held in a wing of Celle prison. By 11 June 2011 he had served ten years in preventive detention. 13.     The courts responsible for the execution of sentences ordered the continuation of the applicant’s preventive detention at regular intervals. In   particular, the Lüneburg Regional Court ordered the continuation of his detention on 13 May 2011 and 5 October 2012. B.     The proceedings at issue 1.     The decision of the Lüneburg Regional Court 14.     On 26 July 2013 the Lüneburg Regional Court, sitting as a chamber responsible for the execution of sentences, ordered the continuation of the applicant’s preventive detention. The Regional Court further ordered the Rosdorf Prison authorities to offer the applicant, within three months of the date on which its decision became final, a specific anti-hormonal therapy with medication aimed at reducing his sadistic fantasies and his libido, and thus his dangerousness. The court had consulted the Celle Prison authorities and the prosecution and had heard the applicant in person as well as his counsel, who represented him throughout the proceedings before the domestic courts. 15.     The Regional Court considered that the requirements for ordering the continuation of the applicant’s preventive detention laid down in the second sentence of section 316f(2) of the Introductory Act to the Criminal Code (see paragraph 53 below) had been met. 16.     The Regional Court confirmed that the said transitional provision was applicable to the applicant’s case. It noted that at the time of his last offence on 3 October 1985, the applicant’s first placement in preventive detention could not exceed ten years. It was only following the entry into force of the Combating of Sexual Offences and Other Dangerous Offences Act on 31 January 1998 (see paragraph 51 below) that the courts responsible for the execution of sentences could prolong preventive detention without any maximum duration. The applicant therefore fell within the category of detainees whose preventive detention had been prolonged retrospectively, as defined by the Federal Constitutional Court in its judgment of 4 May 2011 (see paragraphs 66-72 below). The Regional Court further noted that the second sentence of section 316f(2) of the Introductory Act to the Criminal Code had regard to, and had taken up, the standards set up by the Federal Constitutional Court in the above-mentioned judgment for the continuation of retrospectively ordered or retrospectively prolonged preventive detention. 17.     The Regional Court considered that, in accordance with section   316f(2) of the Introductory Act to the Criminal Code, the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 64 below). It endorsed the findings made on that point by W., an external psychiatric expert it had consulted, in his report dated 8 June 2013. The expert had been obliged to draw up his report on the basis of the case files as the applicant had refused to be examined. Expert W. had confirmed that the applicant suffered from sexual sadism, a sexual deviance, and was addicted to alcohol, even though he had not drunk since being detained. The Regional Court stressed that expert W.’s assessment confirmed the findings made by a number of previous experts, notably those made in January and May 2011 by two experts who had diagnosed the applicant with a sexual preference disorder with sadomasochistic, fetishist and paedophiliac elements and with an alcohol addiction without current consumption of alcohol. 18.     Furthermore, the Regional Court found that, as required by section 316f(2), second sentence, of the Introductory Act to the Criminal Code, there was still a very high risk that, owing to specific circumstances relating to his personality and his conduct, the applicant would if released commit the most serious sexually motivated violent offences, similar to those of which he had been convicted. Endorsing the findings of expert W., in accordance with the above-mentioned previous expert reports, the court noted that the applicant had admitted to his sadistic fantasies but had been unable to address them through therapy. In Celle Prison, he had stopped participating in any activities for persons in preventive detention. The   Regional Court stressed that, in his assessment of the applicant’s dangerousness, the expert had taken into consideration his advanced age of sixty-nine years. However, he had convincingly explained that the applicant’s sexual deviance had not yet been considerably alleviated thereby. Furthermore, his alcohol addiction had not yet been treated adequately. However, the consumption of alcohol further increased the high risk that the applicant would commit sexual or violent offences again if released. 19.     The Regional Court considered that the prolongation of the preventive detention of the applicant, who had been detained for almost thirty years, was still proportionate in view of the considerable threat he posed to the public. It noted in that context that the applicant’s detention in a supervised residence, which it had suggested in its previous decision, was not possible in practice. 20.     As regards the order issued by the Regional Court, based on Article   67d §   2 of the Criminal Code, read in conjunction with Article   66c   §   1 sub-paragraph 1 of the Criminal Code (see paragraphs 49 and 54 below), that the Rosdorf Prison authorities offer the applicant specific anti-hormonal therapy, the court found that that order was necessary to guarantee the applicant sufficient care while in preventive detention. Expert W. had stressed – as he had already done in 2012 – that the prison authorities must at least attempt to treat the applicant, who was willing to undergo treatment with medication. The anti-hormonal therapy to be offered had proved to diminish sadistic fantasies and the libido, and could therefore reduce the applicant’s dangerousness. 2.     The decision of the Celle Court of Appeal 21.     On 1 August 2013 the applicant lodged an appeal against the Regional Court’s decision, for which he submitted reasons on 14 August 2013. He argued, in particular, that his preventive detention, a penalty which had been prolonged retrospectively, failed to comply with the Convention. 22.     On 2 September 2013 the Celle Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed that the requirements laid down in section 316f(2), second sentence, of the Introductory Act to the Criminal Code for ordering the continuation of the applicant’s preventive detention had been met. 23.     Taking into account the report submitted by expert W., the Court of Appeal held that the applicant was suffering from a mental disorder as defined in section 1(1) of the Therapy Detention Act. Referring to the Federal Constitutional Court’s case-law (see paragraphs 73-76 below), it found that a mental disorder under that Act 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 (see   paragraphs 61-62 below). Specific disorders affecting 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. The applicant’s sexual sadism and his alcohol addiction without current consumption of alcohol amounted to a mental disorder within the meaning of that provision. 24.     Moreover, there was still a very high risk that, if released, the applicant would commit the most serious violent and sexual offences, similar to those of which he had been convicted, owing to specific circumstances relating to his personality and his conduct. The applicant’s dangerousness had not been reduced through therapy; nor had he become less dangerous by his advancing age. He currently did not participate in any serious therapeutic activities and kept trivialising his offences. Moreover, expert W. had confirmed that his mental illness was difficult to treat. The   Court of Appeal further endorsed the Regional Court’s finding that the applicant’s continued detention was still proportionate, despite the considerable overall length of his detention. 3.     The decision of the Federal Constitutional Court 25.     On 24 September 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Lüneburg Regional Court and the Celle Court of Appeal. He claimed that the order for the continuation of his preventive detention violated his constitutional right to liberty, read in conjunction with the constitutional right to protection of legitimate expectations guaranteed in a State governed by the rule of law. 26.     The applicant argued that under the European Court of Human Rights’ well-established case-law (he referred to M. v. Germany , no.   19359/04, ECHR 2009), the retrospective prolongation of a person’s preventive detention – a penalty – beyond the former ten-year time-limit breached the prohibition on retrospective punishment under Article 7 of the Convention and did not comply with sub-paragraph (a) of Article 5 § 1 of the Convention. Moreover, his continuing preventive detention could not be justified under sub-paragraph (e) of Article 5 § 1 either. He did not suffer from a mental disease as required by that provision. In addition, the notion and scope of “mental disorder” under the applicable provisions of domestic law and in the domestic courts’ case-law was unclear. 27.     The applicant further stressed that the Regional Court had recommended his placement in a supervised residence. In those circumstances, his continued preventive detention on the premises of Rosdorf Prison was no longer proportionate. He conceded, however, that his detention in the new preventive detention centre on the premises of Rosdorf Prison complied with the constitutional requirement to differentiate between preventive detention and detention for serving a term of imprisonment. 28.     On 29 October 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 2182/13). The decision was served on the applicant’s counsel on 7 November 2013. C.     Parallel and further developments 29.     On 5 December 2011 the Lüneburg Regional Court, civil section, ordered the applicant’s placement in Moringen Psychiatric Hospital under the Therapy Detention Act. It found that the applicant suffered from a mental disorder for the purposes of section 1 of that Act and that there was a high risk that, if released, he would commit further serious offences. On   31   January 2012 the Celle Court of Appeal quashed that decision on the grounds that detention under the Therapy Detention Act could only be ordered once the preventive detention of the person concerned had been terminated by a final decision. 30.     On 25 April 2014 the Göttingen Regional Court, in a decision reviewing the continuation of the applicant’s preventive detention, ordered the continuation of the applicant’s preventive detention. It noted that the applicant had repeatedly refused treatment with medication to diminish his libido. 31.     On 15 January 2015 the Göttingen Regional Court, having consulted medical expert J., again ordered the continuation of the applicant’s preventive detention under Article 67d § 3 of the Criminal Code, read in conjunction with section 316f(2), second sentence, of the Introductory Act to the Criminal Code (see paragraphs 51 and 53 below). On 24 April 2015 the Braunschweig Court of Appeal dismissed an appeal lodged by the applicant against the decision of the Regional Court. D.     The conditions of the applicant’s preventive detention 1.     Conditions prior to the period of detention at issue 32.     Until 20 February 2012 the applicant had been held in preventive detention in a wing of Celle Prison. He had participated in therapy with a psychologist between 2005 and 2010, but had then stopped that therapy. He   had refused to participate in the alcohol addiction treatment programme offered to him or any other treatment measures. 33.     On 20 February 2012 the applicant was transferred with his consent to a wing of Celle Prison for persons in preventive detention where a transitional concept had been adopted. The aim was to improve the available treatment options in the light of the duty to differentiate preventive detention and detention for serving a term of imprisonment, by reference to the European Court of Human Rights’ judgment in M. v. Germany (cited above) and the Federal Constitutional Court’s judgment of 4 May 2011 (see   paragraphs 66-72 below). The applicant participated in group therapy sessions run by a doctor and in a social skills training course. He stopped attending the group for addicts and refused to take medication to reduce his libido for fear of side effects. 2.     Conditions of detention at the relevant time 34.     Since 2 June 2013 the applicant has been detained in the new Rosdorf centre for persons in preventive detention, a separate building constructed on the premises of Rosdorf Prison. 35.     The conception of preventive detention in the centre was developed in order to comply with the constitutional requirement to differentiate between preventive detention and imprisonment, as defined in the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 67 and 70 below) and as further specified in the newly enacted Article 66c of the Criminal Code and in the Lower Saxony Preventive Detention Act (see   paragraphs 54, 56-57 and 59-60 below). 36.     Up to forty-five persons can be detained in the Rosdorf centre. Detainees are placed in apartment units measuring some 23 square metres containing two furnished rooms and a bathroom. With the exception of detainees posing a particular security risk, the detainees can move freely within the preventive detention building and on its outdoor premises from 6   a.m. to 9.45 p.m. They may furnish and paint their rooms, to which they have their own keys. The rooms are equipped with a controlled access to the internet including e-mail, telephone, television, CD and DVD player and radio. There are common rooms for residential groups consisting of some seven detainees, which include a kitchen, a dining room, a television room and rooms for games, handicraft work and exercise. The outdoor premises, measuring some 1,600 square metres, can be used for sports, recreation or gardening. 37.     Persons in preventive detention in the Rosdorf centre may wear their own clothes. They can either take meals prepared by the centre’s staff or prepare their own meals (in which case they receive an allowance for purchasing food in the centre’s supermarket). Persons in preventive detention may work, but are not obliged to do so. They may receive visits regularly. 38.     According to information furnished by the Government, at the relevant time the applicant was one of some thirty persons detained in the Rosdorf preventive detention centre. In order to comply with the duty to provide the necessary therapy and care and to motivate detainees to participate in the relevant therapies and treatment, the centre’s staff comprised one psychiatrist, four psychologists, five social workers and twenty-five members of the general prison service. The staffing situation was similar to that of Moringen Psychiatric Hospital, situated in the same Land and where persons were detained under Article 63 of the Criminal Code. 39.     Detainees are examined at the beginning of preventive detention in order to determine the necessary therapy and care. A personal treatment plan ( Vollzugsplan ) is then drawn up. 40.     According to the personal treatment plan drawn up for the applicant by the Rosdorf centre on 28 November 2014, it was noted that in the past, from July 2013 until August 2014, the applicant participated in group sessions aimed at preventing detainees from relapsing into excessive alcohol consumption. He then stopped attending the meetings. He also regularly participated in group sessions at which detainees discussed their experiences during leave from detention. He stopped participating in those meetings in August 2014 too, arguing that the participants were not granted sufficient additional leave. In addition, he had motivation meetings with a psychologist fortnightly until March 2014, when he stopped attending the meetings, alleging that the psychologist lacked experience. He took part in weekly residential group meetings from June 2013 until February 2014, when he stopped attending the meetings, arguing that his treatment plan did not meet his expectations. He did not take part in any structured leisure activities and spent most of his day alone watching television. He declined repeated invitations to take part in group sessions of the treatment programme for offenders. Thus, as from August 2014 the applicant no longer participated in any therapy measures. He proved reliable during leave from the detention centre under escort on a number of occasions. 41.     According to the Rosdorf centre’s treatment plan for the applicant of 28 November 2014 and an internal note from a staff member of the centre, the applicant has refused regular and repeated offers to start a treatment with medication to reduce his libido, which had been recommended by expert W. in 2013, for fear of side effects. In December 2014 he showed willing for the first time to take up such treatment. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Provisions on preventive detention and its enforcement 1.     General legal framework 42.     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, under the twin-track system of sanctions in German criminal law and the issuing, review and practical implementation 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). 43.     The provisions on preventive detention, notably in the Criminal Code, have been amended since then, in particular, by the Act on establishment, at federal level, of a difference between the provisions on preventive detention and those on prison sentences ( Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung, hereinafter the “Preventive Detention (Distinction) Act”) of 5   December 2012, which entered into force on 1 June 2013. In that Act, the legislator adopted new rules on the enforcement of preventive detention orders and on the execution of prior prison sentences, having regard to the requirements laid down in the Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 (see   paragraphs   66-72 below). 44.     The provisions referred to in the present case provide as follows. 2.     The preventive detention order issued by the sentencing court 45.     When convicting an offender, the sentencing court may, under certain circumstances, order his preventive detention (a so-called measure of correction and prevention) 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). 46.     In particular, the sentencing court could order preventive detention in addition to a penalty under Article 66 § 2 of the Criminal Code, as in force at the relevant time, if the person concerned had committed three intentional offences, each incurring a term of imprisonment of at least one year and if he was sentenced to at least three years’ imprisonment for committing one or more of those offences. In addition, a comprehensive assessment of the person and his acts had to 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 presented a danger to the general public. It was not necessary under that provision that the perpetrator had been previously convicted or detained. 3.     Judicial review of preventive detention 47.     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 preventive detention should be suspended and a measure of probation applied or whether it should be terminated. The court is obliged to carry out such a review within fixed time-limits (paragraph 1 of Article   67e). 48.     Under Article 67e § 2 of the Criminal Code, as in force since 1 June 2013, the time-limit for review of preventive detention was one year; the time-limit is reduced to nine months once the person has been in preventive detention for ten years. 4.     Duration of preventive detention (a)     General provision 49.     Article 67d § 2 of the Criminal Code provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court will suspend on probation further enforcement of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts after release. Since 1 June 2013, Article   67d § 2 provides, in addition, that the court will also suspend on probation the further enforcement of the detention order if it finds that continuation of the detention would be disproportionate because the person concerned had not been offered, within a time-limit fixed by the court of six months at the most, sufficient care within the meaning of Article 66c § 1 sub-paragraph 1 of the Criminal Code (see   paragraph 54 below). If   sufficient care has not been offered, it is for the court to fix that time-limit when it reviews the continuation of the detention and to specify the measures which have to be offered. Suspension of the detention automatically entails supervision of the conduct of the person concerned. (b)     Provision in force prior to 31 January 1998 50.     Under Article 67d § 1 of the Criminal Code, as 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 of the Criminal Code). (c)     Amended provision in force since 31 January 1998 51.     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, as amended and still in force, provides that if a person has spent ten years in preventive detention, the court will 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 automatically entails 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 . (d)     Transitional provision 52.     Section 316f of the Introductory Act to the Criminal Code, which entered into force on 1 June 2013, contains a transitional provision introduced by the Preventive Detention (Distinction) Act. 53.     Section 316f(1) of the Introductory Act provides that the provisions on preventive detention in the Criminal Code, as in force since 1 June 2013, are applicable if at least one of the offences owing to which preventive detention is to be ordered was committed after 31 May 2013. In all other cases, as a rule, the provisions on preventive detention in force until 31 May 2013 have to be applied (first sentence of section 316f(2) of the Introductory Act to the Criminal Code). However, the imposition of, or order for the continuation of preventive detention on the basis of a legislative provision which had not yet entered into force at the time of the last offence at issue, or the imposition of, or order for the continuation of retrospective preventive detention is only authorised in the following circumstances. The person concerned must be suffering from a mental disorder and, owing to specific circumstances relating to his personality or conduct, it must be highly likely that he will commit a serious crime of violence or sexual offence as a result of his mental disorder (second sentence of section 316f(2) of the Introductory Act to the Criminal Code). If those additional requirements for the continuation of preventive detention are no longer met, the court declares the preventive detention terminated; supervision of the offender’s conduct starts when the offender is released from detention (fourth sentence of section 316f(2) of said Act). 5.     Practical implementation of preventive detention 54.     Article 66c of the Criminal Code provides for the manner in which preventive detention and prior terms of imprisonment are implemented. It   was introduced by the Preventive Detention (Distinction) Act (and thus entered into force on 1 June 2013). Article 66c, in so far as relevant, provides as follows: “1.     Detainees held in preventive detention are placed in institutions which (1)     offer the detainee, on the basis of a comprehensive examination and a personal treatment plan which is to be updated regularly, care that is (a)     individual and intensive as well as suitable for raising and furthering his readiness to participate in particular psychiatric, psychotherapeutic or sociotherapeutic treatment, tailored to the detainee’s needs if standardised offers do not have prospects of success, and (b)     aimed at reducing the threat he poses to the public to such an extent that the measure may be suspended and probation granted or that it may be terminated as soon as possible, (2)     guarantee a form of detention that (a)     places as small a burden as possible on the detainee, complies with the requirements for care under sub-paragraph 1 and is assimilated to general living conditions in so far as security concerns allow, and (b)     is separate from detainees serving terms of imprisonment in special buildings or departments in so far as the treatment within the meaning of sub-paragraph 1 does not exceptionally require otherwise, and (3)     in order to attain the aim laid down in sub-paragraph 1 (b) (a)     grant relaxations in the enforcement of the detention and make preparations for release unless there are compelling reasons not to do so, in particular if there are concrete facts constituting a risk that the detainee might abscond or abuse the measures in order to commit considerable offences, and (b)     allow for follow-up care once at liberty in close cooperation with public or private institutions.” 55.     Under section 316f(3) of the Introductory Act to the Criminal Code, the new Article 66c of the Criminal Code is also applicable to persons who committed offence(s) with regard to which preventive detention was ordered prior to 31 May 2013. 56.     The manner in which preventive detention is implemented is regulated in more detail by the different Länder . In Lower Saxony, where the applicant has been detained, the Parliament of the Land has adopted an Act reforming the implementation of preventive detention in Lower Saxony ( Gesetz zur Neuregelung des Vollzuges der Unterbringung in der Sicherungsverwahrung in Niedersachsen, hereinafter the “Lower Saxony Preventive Detention Act”) of 12 December 2012, which entered into force on 1 June 2013. It contains a total of 126 sections. 57.     Section 2 of the Lower Saxony Preventive Detention Act defines the aims of preventive detention. Pursuant to section 2(1), preventive detention aims at reducing the risks to the public posed by the detainee to such an extent that the preventive detention can be suspended and probation granted, or can be terminated as soon as possible. Persons in preventive detention must learn to live a socially responsible life without reoffending (section   2(2)). Preventive detention equally serves to protect the public from further serious offences (section 2(3)). 58.     In comparison, section 5 of the Lower Saxony Execution of Sentences Act ( Niedersächsisches Justizvollzugsgesetz ), which governs, in particular, the execution of prison sentences in Lower Saxony, deals with the purpose of prison sentences. It provides that during their prison sentence detainees must learn to lead a socially responsible life without reoffending (first sentence). At the same time imprisonment is aimed at protecting the public from further offences (second sentence). 59.     Section 3 of the Lower Saxony Preventive Detention Act provides, in particular, that preventive detention must promote individual liberty and focus on the therapy required by the detainees (section 3(1)). Life in preventive detention must be adapted to general living conditions in so far as detainees are not subjected to the restrictions of their liberty provided for by the Act (section 3(2)). 60.     Section 4(1) of the Lower Saxony Preventive Detention Act stipulates that detainees are to be offered without delay the necessary measures of care and other measures necessary to attain the aims laid down in section 2(1) and (2) and are to be continuously encouraged to participate in reaching those aims. Measures of care comprise, in particular, psychiatry, psychotherapy and sociotherapy, which are to be modernised if standard therapies are insufficient or have no prospects of success (section 4(2)). B.     Provisions on criminal liability 61.     Article 20 of the Criminal Code contains rules on the lack of criminal responsibility owing to mental disorders. It provides that a person who, having committed an offence, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality must be deemed to have acted without guilt. 62.     Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that punishment may be mitigated if the perpetrator’s capacity to appreciate the wrongfulness of the act or to act in accordance with such appreciation is substantially diminished upon commission of the act owing to one of the reasons indicated in Article 20 of the Criminal Code. C.     Detention of mentally ill persons 63.     The detention of mentally ill persons is provided for, primarily, 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. A comprehensive assessment of the defendant and his acts must have revealed that, as a result of his condition, he is likely to commit further serious unlawful acts and that he is therefore a danger to the general public. 64.     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 ( Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter, the “Therapy Detention Act”) 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 on retrospective aggravations in relation to preventive detention. Such detention for therapy 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 also be suffering from a mental disorder as a result of which it is highly likely that, if at liberty, he would considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be deemed necessary for the protection of the public. 65.     Under section 2(1) of the Therapy Detention Act, institutions suitable for “therapy detention” are only those that can guarantee, by the medical care and therapy on offer, adequate treatment of the mental disorder of the person concerned on the basis of an individualised treatment plan aimed at keeping the confinement to a minimum duration (subsection (1)). Furthermore, the institutions concerned must allow detention to be effected in the least burdensome manner possible for the detainee, taking into account therapeutic aspects and the interests of public security (subsection   (2)). They must be separated, geographically and organisationally, from institutions in which terms of imprisonment are enforced (subsection (3)). Under section 2(2) of the Therapy Detention Act, as in force since 1 June 2013, institutions within the meaning of Article   66c   § 1 of the Criminal Code are also suitable for therapy detention if they comply with the requirements of section 2(1)subsections (1) and (2) of that Act. D.     Recent case-law of the Federal Constitutional Court 1.     The Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 66.     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. 67.     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 differentiating between preventive detention and imprisonment ( Abstandsgebot ). These provisions included, in particular, Article 66 of the Criminal Code as in force since 27 December 2003. 68.     The Federal Constitutional Court held 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 responsible for the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their personality 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 143-56 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 applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 69.     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). 70.     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 et seq. of the Federal Constitutional Court’s judgment). It   stressed, in particular, that the constitutional requirement to differentiate between preventive detention and 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 had no prospects of success (see § 113 of the Federal Constitutional Court’s judgment). 71.     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 §§ 100-01 and 141-42 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 and 140). It considered that it was not necessary schematically to align the meaning of the constitutional notion of “penalty” with that under the Convention. Recourse should rather be had to the value judgments ( Wertungen ) under the Convention in a result-oriented manner in order to prevent breaches of public international law (ibid.,   §§   91   and 141 et seq.). 72.     Taking account of the constitutional right to protection of legitimate expectations in a State governed by the rule of law and the value judgments 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 151-56). The   Federal Constitutional Court expressly referred in that context to th