CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 4 décembre 2018

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font-style:italic; color:#211d1e } .sDE0C6E51 { font-family:Arial; color:#211d1e } .s948E4775 { font-family:Arial; font-style:italic; color:#1b1a17 } .s4D1DF411 { font-family:Arial; color:#1b1a17 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s35F9952E { font-family:Arial; font-size:6.67pt; font-style:italic; vertical-align:super } .sB0F93B35 { margin-top:0pt; margin-left:7.1pt; margin-bottom:0pt; text-indent:-7.1pt; font-size:10pt } .s253485A0 { font-family:Arial; font-style:italic; color:#2a2a2a } .s37DB63F1 { font-family:Arial; font-size:6.67pt; font-style:italic; vertical-align:super; color:#0069d6 }       GRAND CHAMBER                 CASE OF ILNSEHER v. GERMANY   (Applications nos. 10211/12 and 27505/14)                   JUDGMENT     STRASBOURG   4 December 2018           This judgment is final but it may be subject to editorial revision.   In the case of Ilnseher v. Germany, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Helena Jäderblom,   Robert Spano,   Vincent A. De Gaetano,   Kristina Pardalos,   Paulo Pinto de Albuquerque,   Aleš Pejchal,   Dmitry Dedov,   Iulia Antoanella Motoc,   Jon Fridrik Kjølbro,   Stéphanie Mourou-Vikström,   Georges Ravarani,   Alena Poláčková,   Pauliine Koskelo,   Lәtif Hüseynov, judges, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 29 November 2017 and on 11 July 2018, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in two applications (nos. 10211/12 and 27505/14) 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   Daniel Ilnseher (“the applicant”), on 24 February 2012 and 4 April 2014 respectively. 2.     The applicant, who had been granted legal aid in connection with the presentation of both applications, was initially represented in application no.   10211/12 by Mr A. Ahmed, a lawyer practising in Munich, and subsequently in both applications by Mr I.-J. Tegebauer, a lawyer practising in Trier. The German Government (“the Government”) were represented by theirs Agents, Ms A. Wittling-Vogel, Mr H.-J. Behrens and Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection. 3.     The applicant alleged, in particular, that his “retrospective” preventive detention ( nachträgliche Sicherungsverwahrung ; see for the terminology also paragraphs 104-106 and 157 below) – at issue, ordered in the main proceedings, had violated Article 5 § 1 and Article 7 § 1 of the Convention. Relying on Article 6 § 1 of the Convention, he further complained that the domestic courts had not decided speedily on the lawfulness of his provisional preventive detention, and that Judge P. had been biased against him in the main proceedings concerning the order for his “retrospective” preventive detention. 4.     The applications were allocated to the Fifth Section of the Court (Rule   52 § 1 of the Rules of Court). On 26 November 2013 the Government were given notice of application no. 10211/12. On 22 December 2014 the complaints concerning the order for the applicant’s subsequent preventive detention and the complaint about the partiality of Judge P. made in application no. 27505/14 were communicated to the Government, and the remainder of that application was declared inadmissible pursuant to Rule   54   § 3 of the Rules of Court. 5.     On 2 February 2017 a Chamber of the Fifth Section composed of Erik   Møse, President, Angelika Nußberger, Ganna Yudkivska, Faris   Vehabović, Yonko Grozev, Síofra O’Leary and Mārtiņš Mits, judges, and Milan Blaško, Deputy Section Registrar, unanimously decided to join the applications. It   struck part of the applications out of its list of cases following the Government’s unilateral declaration under Articles 5 and 7   §   1 of the Convention relating to the applicant’s preventive detention from 6 May 2011 to 20 June 2013, and declared the remainder of the applications admissible. It further held, unanimously, that there had been no violation of Article 5 § 1 of the Convention and no violation of Article   7   § 1 of the Convention on account of the applicant’s preventive detention from 20 June 2013 onwards. Moreover, it unanimously held that there had been no violation of Article 5 § 4 of the Convention on account of the duration of the proceedings for review of the applicant’s provisional preventive detention and no violation of Article 6 § 1 of the Convention on account of the alleged lack of impartiality of Judge P. in the main proceedings resulting in a new preventive detention order against the applicant. 6.     On 15 March 2017 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73 of the Rules of Court. On 29 May 2017 the Panel of the Grand Chamber accepted that request. 7.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. At the first deliberations, Stéphanie Mourou-Vikström, substitute judge, replaced Işıl Karakaş, who was unable to take part in the further consideration of the case (Rule 24 § 3). 8.     The applicant and the Government each filed a memorial on the merits (Rule   59 §   1). In addition, third-party comments were received from the European Prison Litigation Network, which had been granted leave by the President on 30 August 2017 to intervene in the written proceedings (Article   36 § 2 of the Convention and Rule 44 §§ 3 and 4). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 29 November 2017 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Ms   A. Wittling-Vogel , Federal Ministry of Justice and   Consumer Protection, Ms   K. Behr , Federal Ministry of Justice and Consumer   Protection, Agents , Mr   T. Giegerich , Professor of EU Law, Public International   Law and Public Law, University of Saarland, Counsel , Ms   P. Viebig-Ehlert , Federal Ministry of Justice and   Consumer Protection, Ms   K. Müller , Chair of EU Law, Public International Law   and Public Law, University of Saarland, Mr   B. Bösert , Federal Ministry of Justice and Consumer   Protection, Mr   C.-S. Haase , Federal Ministry of Justice and Consumer   Protection, Ms   S. Bender , Bavarian Ministry of Justice, Mr   A. Stegmann , Bavarian Ministry of Justice, Advisers ; (b)     for the applicant Mr   I.-J. Tegebauer , lawyer, Mr   M. Mavany ,   Counsel , Ms   D. Thörnich ,   Adviser .   The Court heard addresses by Mr Tegebauer, Mr Mavany and Mr   Giegerich and their replies to questions put by judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicant was born in 1978 and is currently detained in the centre for persons in preventive detention on the premises of Straubing Prison (hereinafter “the Straubing preventive detention centre”). A.     Background to the case: the applicant’s conviction and the first order for his subsequent preventive detention 11.     On 29 October 1999 the Regensburg Regional Court convicted the applicant of murder and, applying the criminal law relating to young offenders, sentenced him to ten years’ imprisonment. It found that in June 1997 the applicant, then aged nineteen, had strangled a woman who had been jogging on a forest path by use of considerable force with a cable, a tree branch and his hands, had partly undressed the dead or dying victim and had then masturbated. The court, having consulted two medical experts, found that the applicant had acted with full criminal responsibility when killing the woman for sexual gratification and in order to cover up his intended rape. The court noted that, despite indications to that effect, both experts had not wished to draw the conclusion that the applicant suffered from a sexual deviancy as the young applicant had made few statements on the motives for his offence. 12.     On 12 July 2008 a new legislative provision, section 7(2) of the Juvenile Courts Act, entered into force. It authorised the ordering of subsequent preventive detention (see for the terminology also paragraphs   104-106 and 157 below) of persons convicted under the criminal law relating to young offenders (see paragraphs 54-57 below). 13.     From 17 July 2008 onwards, after he had served his full prison sentence, the applicant was remanded in provisional preventive detention under Article 275a § 5 of the Code of Criminal Procedure (see paragraph 61 below). 14.     On 22 June 2009 the Regensburg Regional Court, with Judge P. sitting on the bench, ordered the applicant’s subsequent preventive detention under section 7(2)(1) of the Juvenile Courts Act, read in conjunction with section 105(1) of the Juvenile Courts Act (see   paragraphs   56 and 59 below). The court, having regard to the reports made by a criminological expert (Bo.) and a psychiatric expert (Ba.), found that the applicant continued to harbour violent sexual fantasies and that there was a high risk that he would again commit serious sexual offences, including murder for sexual gratification, if released. On 9 March 2010 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the Regional Court’s judgment. 15.     On 4 May 2011 the Federal Constitutional Court, in a leading judgment, allowed the applicant’s constitutional complaint. It quashed the Regional Court’s judgment of 22 June 2009 and the Federal Court of Justice’s judgment of 9 March 2010 and remitted the case to the Regional Court. It further found the order for the applicant’s provisional preventive detention – which had become devoid of purpose once the order for the applicant’s subsequent preventive detention in the main proceedings had become final – to be unconstitutional (file no.   2   BvR   2333/08 and no.   2   BvR 1152/10). The Federal Constitutional Court found that the impugned judgments and decisions had violated the applicant’s right to liberty and the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law (see in more detail paragraphs 68-75 below). B.     The proceedings at issue in application no. 10211/12 concerning the applicant’s provisional preventive detention 1.     Proceedings before the Regional Court 16.     On 5 May 2011 the applicant requested that the Regensburg Regional Court order his immediate release. He claimed that following the Federal Constitutional Court’s judgment of 4 May 2011, which had quashed the judgment ordering his subsequent preventive detention, there was no longer any legal basis for his detention. 17.     On 6 May 2011 the Regensburg Regional Court, allowing the Public Prosecutor’s request of 5 May 2011, again ordered the applicant’s provisional preventive detention under sections 7(4) and 105(1) of the Juvenile Courts Act, read in conjunction with Article 275a § 5, first sentence, of the Code of Criminal Procedure (see paragraphs 59 and 61 below). The court found that the applicant’s provisional preventive detention was necessary because there were weighty grounds for expecting that his subsequent preventive detention would be ordered under section   7(2)(1) of the Juvenile Courts Act, read in the light of the judgment of the Federal Constitutional Court of 4 May 2011. 18.     By submissions dated 27 June 2011, received by the Regional Court on 29 June 2011, the applicant lodged an appeal against the Regional Court’s decision, for which he submitted further statements of grounds on 15, 19, 22, 25 and 26 July 2011. He claimed, in particular, that his provisional preventive detention was unlawful. 19.     On 4 July 2011 the Regensburg Regional Court refused to amend its decision of 6 May 2011. 2.     Proceedings before the Court of Appeal 20.     On 16 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s appeal as ill-founded. It had regard to: (i) a request lodged by the Nuremberg General Public Prosecutor on 20 July 2011 requesting the dismissal of the applicant’s appeal; (ii) the findings of fact made by the Regensburg Regional Court in its judgment of 22 June 2009; (iii) the findings of two medical experts in the proceedings leading to the judgment of 22 June 2009; (iv) the findings of two other experts in previous proceedings regarding the applicant’s mental condition and the level of danger that he posed; and (v) the new restrictive standards set by the Federal Constitutional Court in its judgment of 4 May 2011. 21.     On 29 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s complaint regarding a breach of his right to be heard and his objection to the decision of 16 August 2011. The decision was served on counsel for the applicant on 6 September 2011. 3.     Proceedings before the Federal Constitutional Court 22.     On 7 September 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Regensburg Regional Court dated 6 May 2011, as confirmed by the Nuremberg Court of Appeal. He further requested that the execution of those decisions be stayed by way of an interim measure until the Federal Constitutional Court delivered its decision. The applicant claimed, in particular, that his right to a speedy decision, enshrined in his constitutional right to liberty, had not been respected in the proceedings concerning the review of his provisional preventive detention. 23.     On 18 October 2011 the Federal Constitutional Court communicated the applicant’s constitutional complaint to the regional Government of Bavaria, to the President of the Federal Court of Justice and to the General Public Prosecutor at the latter court. 24.     On 25 October 2011 the Federal Constitutional Court, in a reasoned decision, refused to stay the order for the applicant’s provisional preventive detention by way of an interim measure. 25.     By submissions dated 1 January 2012 the applicant replied to the submissions of the regional Government of Bavaria, of the President of the Federal Court of Justice and of the General Public Prosecutor at the latter court dated 28, 24 and 25 November 2011 respectively. 26.     On 22 May 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1952/11). The decision was served on counsel for the applicant on 30 May 2012. 4.     Subsequent developments 27.     On 17 November 2011 the applicant lodged a fresh request for judicial review of his provisional preventive detention. By a decision of 28   November 2011 the Regensburg Regional Court upheld the applicant’s provisional preventive detention as ordered on 6 May 2011. On 2 January 2012 the Nuremberg Court of Appeal dismissed the applicant’s appeal against that decision. C.     The proceedings at issue in application no. 27505/14, concerning the main proceedings on the applicant’s subsequent preventive detention 1.     Proceedings before the Regensburg Regional Court (a)     Decision on the applicant’s motion for bias 28.     In the resumed proceedings before the Regensburg Regional Court following the remittal of the case to it (see paragraph 15 above), the applicant lodged a motion against Judge P. for bias. The latter had been a member of the bench of the Regensburg Regional Court which had ordered the applicant’s subsequent preventive detention on 22 June 2009 (see   paragraph 14 above). The applicant alleged that Judge P. had remarked to the applicant’s female defence counsel on 22 June 2009, immediately after the delivery of the Regional Court’s judgment ordering the applicant’s subsequent preventive detention, in reference to the applicant: “Be careful that after he is released, you don’t find him standing in front of your door waiting to thank you.” He claimed that the remark had been made in the course of a discussion in camera between the judges of the Regional Court and the applicant’s two lawyers concerning the applicant’s possible transfer to a psychiatric hospital following the Regional Court’s judgment. 29.     In a comment of 13 December 2011 on the applicant’s motion for bias, Judge P. explained that he remembered having had a discussion about the applicant’s possible transfer to a psychiatric hospital at a later stage, after the delivery of the judgment. However, given the length of time that had elapsed, he neither recalled the precise contents of the discussion nor the exact context in which he had allegedly made the impugned remark. 30.     On 2 January 2012 the Regensburg Regional Court dismissed the motion for bias lodged by the applicant. The court considered in particular that, even assuming that the applicant had established to the satisfaction of the court that Judge P. had made the remark in question, there were no objectively justified doubts as to P.’s impartiality as a result thereof. Even assuming that the applicant could reasonably consider the sense of the words “thank you” in the above context as meaning that the applicant could commit a violent offence, it had to be noted that the Regional Court, including Judge P., had just established that the applicant still suffered from fantasies of sexual violence and that there was at that time a high risk that he would again commit serious offences against the life and sexual self ‑ determination of others. Assuming that Judge P. had indeed made the remark in question, his “advice” had therefore constituted in substance nothing more than the application of the Regional Court’s said findings to a particular case. The remark had further been made in the context of a confidential exchange between the participants in the proceedings in the absence of the applicant. Judge P. could have expected that the applicant’s female counsel would interpret his remark in the above-mentioned manner within that context. 31.     Furthermore, Judge P.’s remark had reflected his view as it had been on the day of the Regional Court’s judgment of 22 June 2009. It did not suggest in any way that Judge P. had not been ready to take an impartial decision in the present proceedings, more than two years after the impugned remark and following the conclusion of a new main hearing. The fact that Judge P. had previously dealt with the applicant’s case did not in itself render him biased. (b)     The new order for the applicant’s subsequent preventive detention 32.     On 3 August 2012 the Regensburg Regional Court, having held hearings over twenty-four days, again ordered the applicant’s subsequent preventive detention. 33.     The Regional Court based its 164-page judgment on sections 7(2)(1) and 105(1) of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011. It considered, firstly, that a comprehensive assessment of the applicant, his offence and, in addition, his development during the execution of the sentence relating to young offenders revealed that there was a high risk that the applicant, owing to specific circumstances relating to his person or his conduct, could commit the most serious types of violent crimes and sexual offences, similar to the one he had been found guilty of, if released. 34.     The Regional Court found, secondly, that the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 85 below), namely sexual sadism. Having regard to the case-law of the Federal Court of Justice and the Federal Constitutional Court, it considered that, whereas a mere “accentuation of the personality” was not sufficient to constitute a mental disorder within the meaning of the said Act, such disorder did not have to be so serious as to exclude or diminish the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 82-83 and 88-89 below). Given that the sexual sadism from which the applicant suffered was of a serious nature and had substantially affected his development since adolescence, it amounted to a mental disorder within the meaning of the Therapy Detention Act. 35.     The Regional Court based its view on the reports of two experienced external medical experts whom it had consulted, K. and F., who were professors and doctors for psychiatry and psychotherapy at two different university hospitals. One of the experts consulted, K., was firmly convinced that the applicant continued to suffer from sexual sadism while the other expert, F., formulated his findings more cautiously, stating that it was certain that the applicant had suffered from sexual sadism in 2005 and that this disorder could not be expected to have disappeared. 36.     Having regard to the findings of these experts, as well as to those of several medical experts who had previously examined the applicant since his arrest following his offence, the Regional Court was satisfied that the applicant has had violent sexual fantasies involving the strangulation of women since the age of seventeen. He was suffering from a sexual preference disorder, namely sexual sadism, as described by the relevant tool for the classification of diseases, the International Statistical Classification of Diseases and Related Health Problems in its current version (ICD-10); [1] this disorder had caused, and been manifested in, his brutal offence, and still persisted. The court, having regard to the experts’ findings, observed that the applicant had hidden the sadistic motives behind his offence in the proceedings before the trial court in 1999, which, despite some indications of sexual deviance, had then interpreted the offence as an intended rape which had failed. The applicant, who had given diverging versions of the motive for his offence, had only admitted in 2005/2006, during his examination by a psychological and a psychiatric expert, that in his murder he had put into practice intensifying fantasies of exercising power over women by attacking their neck and by masturbating on their inanimate bodies. The applicant’s new statements concerning his fantasies were more reconcilable with the trial court’s findings as to the manner in which the offence had been carried out. 37.     The court further observed that the therapy followed by the applicant up until 2007, in particular social therapy, which both experts K. and F. had considered as appropriate treatment for his condition, had been unsuccessful. Even though the applicant appeared not to refuse further therapy as a matter of principle, he was not currently undergoing any treatment. He had, in particular, opposed the prosecution’s request to the Regensburg Regional Court in 2010/2011 to transfer him to a psychiatric hospital under Article 67a §§ 2 and 1 of the Criminal Code (see   paragraph   67 below) in order to treat his condition in a different setting. He had further refused meetings aimed at establishing a new individualised therapeutic programme with reference to the pending court proceedings. 2.     Proceedings before the Federal Court of Justice 38.     In an appeal on points of law against the Regional Court’s judgment of 3 August 2012, the applicant complained of the unlawfulness of his “retrospective” preventive detention and of the fact that the judgment had been delivered with the participation of a biased judge, P. 39.     On 5 March 2013 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. 3.     Proceedings before the Federal Constitutional Court 40.     On 11 April 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the “retrospective” order for his preventive detention had infringed the prohibition on retrospective penalties under the Constitution and Article   7   §   1 of the Convention. Furthermore, that order had failed to comply with his constitutional right to liberty, with the protection of legitimate expectations in a State governed by the rule of law and with Article 5 § 1 of the Convention. He further argued that his constitutional right to a tribunal established by law had been violated because Judge P. had been biased against him. 41.     On 5 December 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 813/13). D.     Subsequent developments 42.     The Regensburg Regional Court subsequently reviewed the necessity of the applicant’s preventive detention at regular intervals. It   decided on 18 September 2014, 2 March 2016 and 6 April 2017 that the detention had to continue because the applicant’s mental disorder and consequent dangerousness persisted. Each of the court’s review decisions was based on a fresh report by a different psychiatric expert, all the experts consulted having diagnosed the applicant with sexual sadism. The applicant is currently still in preventive detention. E.     The conditions of the applicant’s detention prior to and during the execution of the preventive detention order 43.     During the execution of his ten-year prison term (up until July 2008) the applicant was, in particular, detained in the social-therapeutic department for sexual offenders of Bayreuth Prison from 2001 to 2007, where he underwent social therapy. As the applicant failed to pursue the therapy with the requisite sincerity and motivation, the core issue of his deviant sexual fantasies could not be sufficiently addressed and the therapy was not completed successfully. In 2007 he was transferred to the social therapy for sexual offenders department of Straubing Prison, where a fresh attempt to treat him also failed owing to the applicant’s lack of motivation vis-à-vis the different therapies provided. 44.     During the execution of his first preventive detention order, issued on 22   June 2009, the applicant had objected to the prosecution’s request to transfer him to a psychiatric hospital under Article 67a §§ 2 and 1 of the Criminal Code (see paragraph 67 below) in order to consolidate further his rehabilitation by undergoing treatment in that hospital. Moreover, he had turned down proposals for a further therapeutic programme in Straubing Prison. 45.     On 7 May 2011, following the quashing of the first preventive detention order and the new order for the applicant’s provisional preventive detention, he was transferred from the wing for persons in preventive detention in Straubing Prison to a wing for persons in detention on remand. As a consequence, the applicant lost the privileges reserved for persons in preventive detention. In particular, he was no longer able to undergo any kind of therapy. On 13 September 2011 he was transferred back to, and once again detained in, the preventive detention wing of Straubing Prison until 20 June 2013, where he was offered social therapy. He rejected the proposal. 46.     Since 20 June 2013 the applicant has been detained in the newly built Straubing preventive detention centre. That institution, which is situated in a separated fenced-off compound on the premises of Straubing Prison and can house up to 84 detainees, has more staff than Straubing Prison, namely one psychiatrist, seven psychologists, one general practitioner, four nurses, seven social workers, one lawyer, one teacher, one prison inspector, forty-four general prison staff members and four administrative staff members, providing for the detainees. Inmates can stay outside their cells, which nowadays measure 15 m² (compared to some 10   m² previously) and now include a kitchen unit and a separate bathroom, between 6 a.m. and 10.30 p.m. 47.     In the Straubing preventive detention centre, inmates are provided with individualised medical and therapeutic treatment by specialised staff in accordance with an individual treatment plan. The treatment options have been considerably increased as compared to those proposed under the previous preventive detention regime in Straubing Prison. The applicant initially refused all types of therapeutic provision at that centre, including one-to-one or group social therapy, participation in an intensive treatment programme for sexual offenders, and therapy administered by an external psychiatrist. He took up one-to-one psychotherapy only after the period covered by the proceedings here at issue, from 10 June 2015 until 30 June 2017, with a psychologist from the preventive detention centre. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     General legal framework of the preventive detention regime 48.     In accordance with a long-standing legal tradition, the German Criminal Code distinguishes between penalties ( Strafen ) and so-called measures of correction and prevention ( Maßregeln der Besserung und Sicherung ) to deal with unlawful acts. In this twin-track system of sanctions, penalties (see Articles 38 et seq. of the Criminal Code) mainly consist of prison sentences and fines, which are fixed in accordance with the defendant’s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code), in a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Articles 66 et seq. of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders and to protect the public from them. They may be imposed on criminally liable offenders in addition to their punishment (cf. Articles 63 et seq.). Such measures must, however, be proportionate to the seriousness of the offences committed, or expected to be committed, by the defendants, as well as to their dangerousness (Article 62 of the Criminal Code). 49.     Preventive detention can be ordered under German law against persons who have committed a criminal offence while acting with full criminal responsibility or with diminished criminal responsibility (see   Articles 66 et seq. of the Criminal Code). Initially, a preventive detention order could only be made by a criminal court at the time of the defendant’s conviction, additionally to a term of imprisonment. Under Article 66 of the Criminal Code, this required, in particular, that the criminal court had convicted the defendant of an offence of a certain gravity (as specified in the law) and that, owing to his propensity to commit serious offences, the defendant presented a danger to the general public. Under the law in force prior to 31 January 1998 (Article 67d § 1 of the Criminal Code), the first period of preventive detention executed against a defendant could not exceed ten years. Following a change in the law, that maximum duration was abolished with immediate effect (see, for further details, M.   v.   Germany , no. 19359/04, §§ 49-54, ECHR 2009). 50.     In 2004, a new Article 66b was inserted into the Criminal Code authorising the imposition of subsequent preventive detention on adult offenders. Preventive detention could from then on be imposed also on adult offenders against whom no preventive detention had been ordered by the trial court having found them guilty of certain serious offences. Such orders could be made separately and subsequently, after the trial court’s judgment, if, before the end of enforcement of a term of imprisonment, evidence came to light which indicated that the detainee concerned posed a significant danger to the general public. By a law which entered into force on 1 January 2011, the legislature substantially restricted the conditions under which preventive detention could be ordered subsequently (see for more details B. v. Germany , no.   61272/09, §§ 33-35, 19 April 2012). 51.     In 2008 section 7(2) of the Juvenile Courts Act – the provision at issue in the present case – entered into force, authorising the imposition of subsequent preventive detention also on young offenders (see   in more detail paragraphs 54-58 below). 52.     In addition to the above-mentioned more recent reforms of the preventive detention regime in 1998, 2004 and 2008, further legislative amendments were made following this Court’s judgment in the case of M.   v.   Germany (cited above) of 17 December 2009 and the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 68-75 below). These were brought about, in particular, by the adoption of the Reform of Preventive Detention Act ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of 22 December 2010, which included the new Therapy Detention Act (see paragraphs 85-89 below) and entered into force on 1 January 2011, and by the Preventive Detention (Distinction) Act, which entered into force on 1 June 2013 (see paragraphs 78 et seq. below). 53.     As regards the procedure for the execution of measures of correction and prevention in general, Article 463 § 1 of the Code of Criminal Procedure stipulates that the provisions on the execution of terms of imprisonment shall apply mutatis mutandis on the execution of measures of correction and prevention, unless provided otherwise. B.     Preventive detention orders against juveniles and young adults 1.     The order for a young offender’s subsequent preventive detention 54.     Initially, the Juvenile Courts Act did not authorise orders for preventive detention in respect of juveniles (persons aged between fourteen and eighteen) or young adults aged between eighteen and twenty-one (see   section 1[2] of the Juvenile Courts Act) to whom the criminal law relating to young offenders was applied. Since 29 July 2004, following a change to section 106 of the Juvenile Court Act, subsequent preventive detention could be ordered against young adults aged between eighteen and twenty-one who were convicted under the ordinary criminal law for adult offenders. 55.     Under the Act on the introduction of subsequent preventive detention for convictions under the criminal law relating to young offenders ( Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht ) of 8 July 2008, which came into force on 12 July 2008, section 7(2) was inserted into the Juvenile Courts Act. 56.     The wording of section 7(2) of the Juvenile Courts Act, as in force up until 31 May 2013, provided: “If, following the imposition of a sentence applicable to young offenders of at least seven years for ... a felony 1.     against life, physical integrity or sexual self-determination, or 2.     ... through which the victim either suffered grave mental or physical damage or was exposed to the risk of suffering such damage, there is evidence prior to the end of the sentence ... indicating that the convicted person poses a significant danger to the general public, the court may order preventive detention subsequently if a comprehensive assessment of the convicted person, his offence or offences and, on a supplementary basis, his development during the serving of the sentence ... determines that it is very likely that he will again commit offences of the nature described above.” 57.     The Federal Government, when submitting the draft Act on the introduction of subsequent preventive detention for convictions under the criminal law relating to young offenders to Parliament (see Publication of the Federal Parliament ( Bundestagsdrucksache ) no.   16/6562, p. 1), had argued that recent examples had shown that, like adult offenders, young offenders sentenced under the Juvenile Courts Act could, in exceptional cases, prove to be very dangerous to others even after having served a term of imprisonment of several years. Where young offenders could not be placed in a psychiatric hospital, there was, at that time, no legal basis for remanding them in detention as necessary for the protection of the public. 58.     Under the Preventive Detention (Distinction) Act, which entered into force on 1 June 2013 (see, for further details, paragraphs 76 et seq. below), the legislature substantially restricted the conditions under which preventive detention could be ordered subsequently against young offenders. 59.     Section 105(1) of the Juvenile Courts Act provides that the court shall apply certain provisions of that Act relating to juveniles, particularly section 7 thereof, if a young adult aged between eighteen and twenty-one commits an offence and if, in particular, a comprehensive assessment of the perpetrator’s personality, taking into account his living environment, has shown that the perpetrator only had the moral and intellectual development of a juvenile at the time of his offence. 60.     Section 43(2) of the Juvenile Courts Act provides that in criminal proceedings against young offenders, an expert qualified to examine juveniles should, if possible, be charged with carrying out necessary examinations of the offender. 2.     Provisional preventive detention and judicial review thereof 61.     While proceedings concerning a young offender’s subsequent preventive detention are pending, a court may order the person’s provisional preventive detention (until the relevant judgment on subsequent preventive detention becomes final) if there are weighty reasons to expect that that person’s subsequent preventive detention will be ordered (see   section 7(4) of the Juvenile Courts Act, read in conjunction with Article   275a § 5, first sentence, of the Code of Criminal Procedure, in the wording in force at the relevant time under the applicable transitional provision). 62.     Under Articles 304 § 1 and 305 of the Code of Criminal Procedure there is a possibility (which is not subject to any time-limit) of lodging an appeal with the Court of Appeal against a provisional preventive detention order from a Regional Court; under Article 310 of the Code of Criminal Procedure no further appeal lies before the ordinary courts against the Court of Appeal’s decision. 63.     However, a detainee may lodge a fresh request for judicial review of his detention with the competent Regional Court in accordance with Articles   117 et seq. of the Code of Criminal Procedure read in conjunction with Article 275a § 5, fourth sentence, of the Code of Criminal Procedure following the Court of Appeal’s decision. A further appeal lies against the Regional Court’s judicial review decision (Articles 304 et seq. of the Code of Criminal Procedure) with the Court of Appeal. 3.     Judicial review of subsequent preventive detention and duration thereof 64.     Under section 7(4) of the Juvenile Courts Act, in the wording in force up until 31 May 2013, read in conjunction with Article 67e of the Criminal Code, the courts were obliged to examine at yearly intervals whether a particular preventive detention order under section 7(2) of the Juvenile Courts Act might be terminated or suspended and a measure of probation applied. In its judgment of 4 May 2011 (see paragraphs 68-75 below), the Federal Constitutional Court ordered that this time-limit be reduced from one year to six months. 65.     Since 1 June 2013, under Article 67d § 2 of the Criminal Code, read in conjunction with section 316f(2) and (3) of the Introductory Act to the Criminal Code, courts have been able to order subsequent preventive detention to continue only if the person concerned suffers from a mental disorder and if, owing to specific circumstances relating to his personality or his conduct, there is a high risk that he will commit the most serious types of violent crimes or sexual offences as a result of that disorder. If these criteria are not met, the court will suspend on probation further enforcement of the detention order and order the supervision of the person’s conduct. 66.     Since 1 June 2013, Article 67d § 2 of the Criminal Code has additionally provided that the court will also suspend on probation the further enforcement of the detention order if it finds that the continuation of the detention would be disproportionate because the person concerned had not been provided, within a maximum six-month time-limit fixed by the court, with sufficient care within the meaning of Article   66c   §   1 sub ‑ paragraph 1 of the Criminal Code (see paragraphs 79 ‑ 80 below). If sufficient care has not been provided, 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. 4.     Transfer for implementation of a different measure of correction and prevention 67.     Article 67a of the Criminal Code contains provisions on the transfer of detainees for the implementation of a measure of correction and prevention different from the measure originally ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, a court may subsequently transfer a person in respect of whom preventive detention has been ordered to a psychiatric hospital or detoxification facility if the person’s reintegration into society can thereby be better promoted. C.     The Federal Constitutional Court’s judgment of 4 May 2011 and the ensuing amendments to the German preventive detention regime 1.     The Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 68.     On 4 May 2011 the Federal Constitutional Court delivered a leading judgment on preventive detention following constitutional complaints both of detainees remanded in preventive detention which had been prolonged subsequently beyond the former ten-year maximum period and of detainees – including the applicant in the present case – remanded in subsequently ordered preventive detention under Article 66b § 2 of the Criminal Code or section 7 (2) of the Juvenile Courts Act (file   nos. 2 BvR 2365/09, 2   BvR   740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). 69.     The Federal Constitutional Court’s judgment was adopted after this Court had, on 17 December 2009, delivered a leading judgment in the case of M. v. Germany (cited above) in which it had held that the subsequent extension of Mr M.’s preventive detention beyond the former statutory maximum period of ten years applicable at the time of that applicant’s offence and conviction had breached both Article 5 § 1 and Article 7 § 1 of the Convention. 70.     The Federal Constitutional Court, reversing its previous position adopted notably in its judgment of 5 February 2004 (file no.   2   BvR   2029/01), held that all provisions concerned by the constitutional complaints, both on the subsequent prolongation of preventive detention and on the subsequent 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. 71.