CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 juin 2012

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A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s previous convictions and the order for his preventive detention and execution thereof 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. 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 ‘Relevant domestic law and practice’ below). 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 homosexual, paedophile and masochist elements which was not so severe as to be pathological, had acted with full criminal responsibility. 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 mental damage. 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. 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. 2.     The proceedings at issue (a)     The decision of the Koblenz Regional Court 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 ‘Relevant domestic law and practice’ below), requested the Koblenz Regional Court to order his release immediately. On 16 September 2011 the Koblenz Regional Court, having heard the applicant in person, his counsel and psychiatric expert V., ordered the applicant’s preventive detention to continue (Article 67 d § 3 of the Criminal Code; see ‘Relevant domestic law and practice’ below). 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 its version then in force, which had, however, been abolished in January 1998 (see ‘Relevant domestic law and practice’ below). 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 ‘Relevant domestic law and practice’ 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. His continued preventive detention was therefore proportionate. In this respect, the Regional Court endorsed the findings made in the report submitted by psychiatric expert V. on 1 December 2010 and his additional report dated 2 August 2011. The expert had considered the applicant to be a paedophile psychopath suffering from a dissocial personality disorder, which could not be considered as pathological. A   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 or homosexual behaviour and lacked empathy. There was therefore a medium to high risk that the applicant would commit further similar offences as those he had been convicted of if released. 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. 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 Article 1 § 1 of the Therapy Detention Act (see ‘Relevant domestic law and practice’ below). That mental disorder did not have to entail a restriction of the applicant’s criminal responsibility. As psychiatric expert V. had confirmed, the sexual deviation the applicant suffered from was not pathological, but was a mental disorder within the meaning 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 that mental disorder. 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. (b)     The decision of the Koblenz Court of Appeal 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 and dissocial personality the applicant had been diagnosed with 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 and recording of porno videos of children, which had to be classified as most serious sexual offences. (c)     The decision of the Federal Constitutional Court 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 the 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 to support his view. 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). 3.     The conditions of the applicant’s detention during the execution of the preventive detention order in prison Since January 2004 the applicant is detained in a separate wing of Diez Prison for persons in preventive detention. In 2004 the applicant underwent a therapy for sexual offenders in prison which was discontinued following conflicts with the psychologist as the applicant had not changed his attitude towards his offences. 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. B.     Relevant domestic law and practice 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: 1.     The order of preventive detention by the sentencing court 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). 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. 2.     Judicial review and duration of preventive detention 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. 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). Under Article 67d § 1 of the Criminal Code, in its 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). 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 . 3.     The detention of mentally ill persons 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. 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. 4.     Recent case-law of the Federal Constitutional Court 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. 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. 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. 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). COMPLAINTS The applicant complains that his disproportionately long preventive detention, and in particular his detention beyond the period of ten years, which was the maximum for such detention under the legal provisions applicable at the time of his offences and conviction, breached his right to liberty under Article 5 § 1 of the Convention and the prohibition of retrospective punishment under Article 7 § 1 of the Convention. He relies on the Court’s findings in the case of M. v. Germany (cited above) to support his view. QUESTIONS TO THE PARTIES   1.     Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention in so far as he was remanded in preventive detention beyond the ten-year maximum duration applicable at the time of his offence and conviction? In particular, having regard to the Court’s case-law in the case of M.   v.   Germany (no. 19359/04, ECHR 2009) and a number of follow-up cases (see, in particular, Kallweit v. Germany , no. 17792/07, 13 January 2011; O.H. v. Germany , no. 4646/08, 24 November 2011; and Kronfeldner v. Germany , no. 21906/09, 19 January 2012) did that deprivation of liberty, executed in prison, fall within any of the sub-paragraphs (a) to (f) of Article   5 § 1?   2.     Taking into consideration, in particular, the Court’s conclusions in its judgment in the case of M. v. Germany (cited above), was a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of the offence in the present case, as proscribed by Article 7 § 1 of the Convention?