CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 septembre 2015

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The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). He is represented before the Court by Mr H. Korte, a lawyer practising in Kassel. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case (a)     The applicant’s conviction and the order for the applicant’s retrospective preventive detention On 6 February 1992 the Frankfurt am Main Regional Court convicted the applicant, a first offender, of three counts of murder and one count of attempted murder committed between October 1988 and March 1990. The   applicant was found to have killed or have attempted to kill in his car four young women he had not previously known treacherously and in order to satisfy his sexual desires. The court sentenced the applicant to fifteen years’ imprisonment and ordered his placement in a psychiatric hospital (Article   63 of the Criminal Code, see Relevant domestic law and practice below). The Frankfurt am Main Regional Court, having consulted a psychiatric and a psychological expert who had diagnosed the applicant with a sadist sexual deviation, a lack of empathy including a social handicap, and a brain damage leading to an organic psycho-syndrome, found that the applicant suffered from a serious mental abnormality and had acted with diminished criminal responsibility (Article 21 of the Criminal Code). Furthermore, owing to that condition, the applicant was liable to reoffend and was therefore dangerous to the public. On 13 March 2008 the Frankfurt am Main Regional Court, relying on Article 66b § 3 of the Criminal Code in the version then in force (see   Relevant domestic law and practice below), ordered the applicant’s preventive detention retrospectively ( nachträgliche Sicherungsverwahrung ). The Frankfurt am Main Regional Court found that, as required by Article   66b § 3 (1) of the Criminal Code, the applicant had been placed in a psychiatric hospital pursuant to Article 63 of the Criminal Code after having committed several murders. On 5 April 2007 the Kassel Regional Court had terminated the applicant’s placement in a psychiatric hospital pursuant to Article   67d § 6 of the Criminal Code (see Relevant domestic law and practice below) as the condition diminishing the applicant’s criminal responsibility on which the placement order had been based had never existed and thus did not persist at the time of the decision terminating the placement. The Frankfurt am Main Regional Court further considered that a comprehensive assessment of the applicant, his offences and, in addition, his development during the execution of his placement in a psychiatric hospital revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims, namely offences similar to those which he had been convicted of in 1992 (Article 66b § 3 (2) of the Criminal Code). The Regional Court based its decision on the findings of two psychiatric experts (L. and H.) it had consulted and on the statements made by the doctors who had attempted to motivate the applicant to undergo therapy in prison and in the psychiatric hospital. The psychiatric experts, who had been obliged to draw up their reports on the basis of the case files as the applicant had refused to have himself examined by them, had considered that there was a high risk that the applicant would commit further murders for sexual motives or in order to cover up previous violent sexual offences if released. He had committed a series of murders without any comprehensible motives arising from his personal situation. Even though he did not suffer from a true sadistic deviation, his acts had disclosed a combination of aggressive and sadistic sexual elements. He was particularly dangerous for his lack of empathy and his refusal to reflect on his offences and to undergo treatment. The applicant’s appeal on points of law to the Federal Court of Justice and his complaint to the Federal Constitutional Court against the Regional Court’s judgment were to no avail. (b)     The proceedings before this Court (application no. 65210/09) The applicant subsequently lodged application no. 65210/09 with this Court. He claimed that the retrospective order for his preventive detention made by the Frankfurt am Main Regional Court on 13 March 2008 and confirmed on appeal had violated the prohibition on retrospective punishment. On 7 June 2012 the Court, in its judgment in the case of G v. Germany , held that the impugned order for the applicant’s preventive detention had violated Article 7 § 1 of the Convention. The judgment became final on 7   September 2012. 2.     The proceedings at issue (a)     The proceedings before the Regional Court (i)     The submissions of the parties to the proceedings On 25 September 2012 the applicant lodged a request under Article   359   no. 6 of the Code of Criminal Procedure (see Relevant domestic law and practice below) with the Frankfurt am Main Regional Court to reopen the proceedings having ended with that court’s judgment of 13 March 2008 and to quash the retrospective preventive detention order made therein. The   applicant further requested to order the suspension of the execution of his detention under Article 360 § 2 of the Code of Criminal Procedure (see   Relevant domestic law and practice below). The applicant argued that, as required for a reopening under Article   359   no. 6 of the Code of Criminal Procedure, the European Court of Human Rights had found in its judgment of 7 June 2012 that the retrospective preventive detention order made against him had breached the Convention, namely Article 7 § 1 thereof. Furthermore, the Frankfurt am Main Regional Court’s judgment of 13 March 2008 was based on that violation of the Convention. If the Regional Court had been aware that the order for his preventive detention under Article 66b § 3 of the Criminal Code was in breach of the Convention, it would have been prevented from applying that provision of the Criminal Code and would thus not have ordered his retrospective preventive detention. As his deprivation of liberty in breach of the Convention was a consequence of the Regional Court’s judgment, that judgment had to be quashed in order to end that deprivation of liberty. The request was forwarded to the competent Darmstadt Regional Court. On 21 November 2012 the prosecution requested to dismiss the applicant’s motion to reopen the proceedings. It argued that, even applying the strictest standard possible under the Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 (see Relevant domestic law and practice below), the applicant’s preventive detention would have been ordered. Owing to specific circumstances relating to his person and his conduct, there was a high risk that the applicant would again commit the most serious crimes of violence and sexual offences. Moreover, there were indications that the applicant suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act (see   Relevant domestic law and practice below). In his further submissions of 17 December 2012 the applicant contested the prosecution’s view. He argued that it could not be excluded that the Frankfurt am Main Regional Court’s judgment of 13 March 2008 was based on the breach of Article 7 of the Convention at issue as there had not only been a breach of the Convention as a result of a procedural mistake, but a breach of a substantive right, the prohibition on retrospective punishment. He further submitted that it was irrelevant for the reopening proceedings whether, as the prosecution had submitted, he suffered from a mental disorder as defined by the Therapy Detention Act. An order under that Act was not at issue in the reopening proceedings and the said Act was possibly unconstitutional itself. (ii)     The Regional Court’s decision On 20 December 2012 the Darmstadt Regional Court dismissed the applicant’s request to reopen the proceedings as inadmissible (Article   368   §   1 of the Code of Criminal Procedure; see Relevant domestic law and practice below). It further dismissed the applicant’s request under Article   360 § 2 of the Code of Criminal Procedure to suspend the execution of the preventive detention order. The Darmstadt Regional Court considered that the Frankfurt am Main Regional Court’s judgment of 13 March 2008 was not based on the breach of Article 7 of the Convention found by the European Court of Human Rights in its judgment of 7 June 2012, as required by Article 359 no. 6 of the Code of Criminal Procedure. The Darmstadt Regional Court found that, even if the Frankfurt am Main Regional Court had taken into account that Article 66b § 3 of the Criminal Code violated Article 7 of the Convention, it would, without any doubt, have taken the same decision and would have ordered the applicant’s retrospective preventive detention. Having regard to the findings made by the Federal Constitutional Court in its judgment of 4 May 2011, which were binding on all German courts, the latter had to further apply Article 66b § 3 of the Criminal Code until 31 May 2013 subject to a strict proportionality test. However, even applying that strict standard of proportionality, a preventive detention order would have been made against the applicant. The Darmstadt Regional Court noted that the psychiatric experts L. and H., heard by the Frankfurt am Main Regional Court in the proceedings before it, had found that there was a high risk that the applicant would commit further offences comparable to those he had been convicted of, that is, murders for sexual motives or in order to cover up previous violent sexual offences, if released. According to expert L., even if the applicant did not suffer from a sadistic deviation, the combination of aggressive and sadistic sexual impulses, as well as the applicant’s lack of empathy were, among other elements, causes for that high risk. The applicant had refused any treatment throughout his detention. Having regard to these findings, the Regional Court was satisfied that there was a particularly high risk that the applicant would commit the most serious offences, namely capital offences, if released. The Darmstadt Regional Court finally observed that the applicant would probably be transferred to a branch of Schwalmstadt Prison on the premises of Weiterstadt Prison on 15 January 2013, where preventive detention was to be executed in accordance with the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (see Relevant domestic law and practice below). The applicant’s situation in detention might be different from that at issue in the European Court of Human Rights’ judgment from then onwards. (b)     The proceedings before the Court of Appeal On 21 January 2013 the applicant lodged an appeal against the Darmstadt Regional Court’s decision. He argued that in its judgment of 7 June 2012 the European Court of Human Rights had found with binding effect that the order for his retrospective preventive detention in the Frankfurt am Main Regional Court’s judgment of 13 March 2008 was in breach of Article 7 § 1 of the Convention. The impugned judgment had thus breached a substantive Convention provision in the rank of German Federal law and was based on that breach of the law. He further took the view that the Federal Constitutional Court’s case-law as laid down in its judgment of 4 May 2011 did not alter that finding as that case-law obviously did not comply with the requirements of the Convention. On 29 April 2013 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal. It found that the applicant’s appeal was admissible, but ill-founded. It endorsed the Darmstadt Regional Court’s finding that the applicant’s request to reopen the proceedings was inadmissible (Article   368   § 1 of the Code of Criminal Procedure) because the applicant had not sufficiently substantiated that there was a statutory ground for reopening the proceedings (Article 366 § 1 of the Code of Criminal Procedure; see Relevant domestic law and practice below). As a consequence, his request to suspend the execution of his preventive detention under Article 360 § 2 of the Code of Criminal Procedure equally had to be dismissed. The Court of Appeal explained that a request to reopen the proceedings under Article 359 of the Code of Criminal Procedure questioned the impugned judgment’s finality, which served legal certainty. If the finality of a judgment should exceptionally be set aside in the interest of individual justice, the convicted person, represented by counsel, could be expected to substantiate sufficiently that the judgment suffered from such a grave mistake so as to justify a reopening of the proceedings. If it could be ruled out that the impugned judgment was based on a breach of the Convention, reopening the proceedings under Article 359 no. 6 of the Code of Criminal Procedure was excluded. The Court of Appeal found that in his request to reopen the proceedings of 25 September 2012 and his submissions of 17 December 2012, the applicant failed sufficiently to substantiate that the judgment of 13 March 2008 was based on the breach of the Convention later found by the European Court of Human Rights. It was not sufficient for the applicant to have argued in this respect that if the Frankfurt am Main Regional Court had not breached the Convention, it would not have ordered the applicant’s retrospective preventive detention. The applicant’s reasoning would only have been sufficient if ordering his retrospective preventive detention under Article 66b § 3 of the Criminal Code in the version then in force had not been possible under any circumstances without a breach of the Convention. However, that reasoning was not correct from a legal point of view. The Court of Appeal found that in accordance with the Federal Constitutional Court’s well-established case-law, the European Court of Human Rights’ finding that the judgment of the Frankfurt am Main Regional Court or the legal provision on which it had been based had breached the Convention did not automatically entail the consequence that the impugned judgment had to be set aside. The Frankfurt am Main Regional Court would only have been obliged under the Federal Constitutional Court’s case-law to interpret Article 66b § 3 of the Criminal Code in the manner set out by that court in its judgment of 4 May 2011 and in its decision in the applicant’s case of 6 February 2013 (see below). In view of the foregoing, it had been necessary for the applicant to substantiate that the conditions for his retrospective preventive detention, having regard to the standard of proportionality as defined by the Federal Constitutional Court, had not been met from a factual point of view and that the Frankfurt am Main Regional Court would not, therefore, have ordered his retrospective preventive detention under Article 66b § 3 of the Criminal Code. However, he had not given any explanations why there was no high risk that he would commit the most serious crimes of violence or sexual offences if released. Likewise, he had not substantiated that he did not suffer from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act. (c)     The proceedings before the Federal Constitutional Court On 5 June 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Darmstadt Regional Court and of the Frankfurt am Main Court of Appeal. He   complained, in particular, that these two decisions, as well as the judgment of the Frankfurt am Main Regional Court of 13 March 2008, had breached, inter alia , his constitutional right to liberty and the prohibition on retrospective punishment. He argued that the interpretation, by the lower courts, of the notion of a judgment being “based” on a breach of the Convention had disregarded the fact that there had not only been a procedural mistake, but a breach of substantive fundamental rights, including the prohibition on retrospective punishment, which had resulted in the judgment of 13 March 2008. It could not be excluded that his retrospective preventive detention would not have been ordered if the Frankfurt am Main Regional Court had taken into account the fact that Article 66b § 3 of the Criminal Code breached the Constitution and the Convention. On 22 July 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons in respect of the above complaints (file no. 2 BvR 1255/13). The decision was served on the applicant’s counsel on 31 July 2013. 3.     Further proceedings for the review of the applicant’s preventive detention In proceedings for the review of the applicant’s preventive detention, the Frankfurt am Main Court of Appeal, on 22 August 2011, dismissed the applicant’s appeal against the Marburg Regional Court’s decision refusing to terminate the applicant’s preventive detention. Endorsing the reasons given by the Regional Court, the Court of Appeal considered that in accordance with the conditions set up by the Federal Constitutional Court in its judgment of 4 May 2011, the continuation of the applicant’s preventive detention was only subject to a strict review of proportionality, that is, there had to be a danger of the person concerned committing serious crimes of violence or sexual offences if released. These conditions were met in the applicant’s case as there was a risk that he would commit treacherous murders to satisfy his sexual desires if released. The   stricter standards set up by the Federal Constitutional Court in its said judgment for a continuation of preventive detention which had been ordered retrospectively under paragraph 2 of Article 66b of the Criminal Code (see   Relevant domestic law and practice below) did not apply to preventive detention ordered, as in the case before it, under paragraph 3 of that provision. On 6 February 2013 the Federal Constitutional Court quashed the decision of the Frankfurt am Main Court of Appeal of 22 August 2011 and remitted the case to that court (file no. 2 BvR 2122/11). The Federal Constitutional Court found that, having regard to the valuations of Articles 5 § 1 and 7 § 1 of the Convention, a retrospective order for a person’s preventive detention or its continuation under Article   66b § 3 of the Criminal Code was only possible under the more restrictive conditions applicable to retrospective preventive detention orders under Article 66b § 2 of the Criminal Code. A person’s preventive detention under Article 66b § 3 of the Criminal Code could therefore only be ordered if there was a high risk that the person concerned, owing to specific circumstances relating to his person or his conduct, committed the most serious crimes of violence or sexual offences and if, additionally, he suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act. The impugned decision of the Court of Appeal had not applied these standards. On 4 September 2014 the Marburg Regional Court, following the remittal of the case to it, again decided not to terminate the applicant’s preventive detention. The decision was confirmed on appeal. 4.     The conditions of the applicant’s detention When lodging his request for a reopening of the proceedings on 25   September 2012, the applicant was detained in Schwalmstadt Prison. In   the beginning of 2013 he was transferred to a branch of Schwalmstadt Prison on the premises of Weiterstadt Prison. B.     Relevant domestic law and practice The relevant domestic law and practice is summarized in the Court’s judgment of 7 June 2012 in the first application brought by the applicant ( G   v. Germany , cited above, §§ 33-48). The provisions quoted in the present case provide as follows. 1.     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 (no. 19359/04, ECHR 2009), 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. 2.     Retrospective preventive detention orders The Retrospective Preventive Detention Act ( Gesetz zur Einführung der nachträglichen Sicherungsverwahrung ) of 23 July 2004, which entered into force on 29 July 2004, inserted Articles 66b and 67d § 6 into the Criminal Code; the latter provision was amended by an Act of 13 April 2007. Article   66b §   3 of the Criminal Code, in its version in force at the relevant time, provided: Article 66b     Retrospective order for placement in preventive detention “(3)     If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement, the court may order preventive detention retrospectively if 1.     the placement of the person concerned under Article 63 was ordered on the basis of several of the offences listed in Article 66 § 3, first sentence, or if the person concerned had either already been sentenced to at least three years’ imprisonment or had been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63, and 2.     a comprehensive assessment of the person concerned, his offences and, in addition, his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims.” Article 67d § 6 of the Criminal Code, in its version in force at the relevant time, provided: Article 67d     Duration of detention “(6)     If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. On termination of the measure, the conduct of the person concerned shall be supervised. ...” The said two provisions remained valid also under the Reform of Preventive Detention Act ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code by the said Act, the former paragraph 3, slightly amended, became the only provision of that Article. 3.     Provisions concerning the reopening of criminal proceedings Article 359 no. 6 of the Code of Criminal Procedure provides that the reopening, for the convicted person’s benefit, of proceedings which were concluded by a final judgment is permitted if the European Court of Human Rights found that there had been a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or of its Protocols and if the judgment was based on that violation. Under Article 360 of the Code of Criminal Procedure, a request for reopening of the proceedings does not constitute an obstacle to execution of the judgment (paragraph 1). However, the court may order a postponement or suspension of the execution (paragraph 2). Article 366 § 1 of the Code of Criminal Procedure, on the content and form of reopening requests, provides that the request must contain the statutory ground for reopening the proceedings and the evidence. Article 368 § 1 of the Code of Criminal Procedure stipulates that the reopening request shall be dismissed as inadmissible if the request was not submitted in the prescribed form or if no statutory ground for reopening was invoked or no appropriate evidence was adduced. 4.     Relevant 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 and Article   66b § 3 of the Criminal Code in its version of 23 July 2004. 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 the refusal to reopen the criminal proceedings against him and to suspend the execution of his preventive detention and the resulting continuation of that detention violated Article   5   §   1 of the Convention. In the applicant’s submission, the continuing application of Article 66b § 3 of the Criminal Code and the execution of retrospective preventive detention on its basis was in breach of Article 5 § 1. In particular, his continuing detention could not be justified under sub ‑ paragraph (e) of Article 5 § 1. He was not of unsound mind within the meaning of that provision. Being detained in prison, he was further not placed in an institution suitable for mental health patients. The applicant further argues that the domestic courts’ refusal to reopen the criminal proceedings against him, to quash the judgment of 13 March 2008 and to order his release, despite the fact that the Court, in its judgment of 7   June 2012, found that his retrospective preventive detention was in breach of Article 7 § 1 of the Convention, again violated that provision, as well as Article 46 § 1 read in conjunction with Article 1 of the Convention.   QUESTIONS TO THE PARTIES 1.     Is the application compatible ratione materiae with the provisions of the Convention? Or does the application concern a matter which is essentially the same as that examined by the Court in application no. 65210/09?   2.     Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, did the applicant raise the complaints he brings before the Court in the proceedings before the domestic courts in compliance with the formal requirements of domestic law? And did the competent courts examine the substance of those complaints?   3.     Did the refusal to reopen the criminal proceedings against the applicant and to suspend the execution of his preventive detention deprive the applicant of his liberty in breach of Article 5 § 1 of the Convention? In particular, having regard to the Court’s case-law in the case of Glien v.   Germany (no. 7345/12, 28 November 2013), was that deprivation of liberty justified under sub-paragraph (e) of Article 5 § 1? Was the applicant reliably shown to be of unsound mind, and was he detained in an institution suitable for mental health patients, as required by that provision?   4.     Taking into consideration, in particular, the Court’s conclusions in its judgment in the case of M. v. Germany (no. 19359/04, ECHR 2009), was a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of the offence by the refusal to reopen the criminal proceedings against the applicant and to suspend the execution of his preventive detention, as proscribed by Article 7 § 1 of the Convention?   5.     In which places and under which conditions was the applicant detained since the order for his retrospective preventive detention has been made on 13 March 2008? And which therapies / treatment was he offered?