CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 17 décembre 2009

.s800EAC49 { font-size:12pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s64F53BD5 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt; text-align:right; font-size:11pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s289A4F99 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt; text-align:center; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sA101A847 { font-family:Arial; font-size:11pt; font-weight:bold } .s7ED160F0 { text-decoration:none } .sDF54F73C { font-family:Arial; font-size:7.33pt; font-weight:bold; vertical-align:super; color:#0000ff } .sA36B60A1 { font-family:Arial; font-style:italic } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s50AD5DC5 { margin-top:0pt; margin-bottom:0pt; text-align:left; page-break-after:avoid; font-size:11pt } .s595305E7 { font-family:Arial; font-weight:normal; text-decoration:underline } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBA813D16 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0000ff } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s7AF76660 { font-family:Arial; font-size:7.33pt; vertical-align:super } .sB853CD26 { font-family:Arial; font-size:8pt } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right }     970 17.12.2009       Press release issued by the Registrar   Chamber judgment 1     M. v. Germany (application no. 19359/04)   RETROACTIVE EXTENSION OF A PRISONER’S PREVENTIVE DETENTION NOT JUSTIFIED   Violation of Article 5 § 1 (right to liberty) and Article 7 § 1 (no punishment without law) of the European Convention on Human Rights     Principal facts   The applicant, Mr M., is a German citizen, who was born in 1957 and is currently detained in Schwalmstadt Prison. After a long history of previous convictions, the Marburg Regional Court convicted him of attempted murder and robbery and sentenced him to five years’ imprisonment in November 1986. At the same time it ordered his placement in preventive detention ( Sicherungsverwahrung ), relying on the report of a neurological and psychiatric expert, who found that the applicant had a strong tendency to commit offences which seriously harmed his victims’ physical integrity, that it was likely he would commit further acts of violence and that he was therefore dangerous to the public.   After having served his full prison sentence, the applicant’s repeated requests between 1992 and 1998 for a suspension on probation of his preventive detention were dismissed by two regional courts, respectively relying on an expert report and taking into consideration the applicant’s violent and aggressive conduct in prison. In April 2001 the Marburg Regional Court again refused to suspend on probation the applicant’s preventive detention and ordered its extension beyond September 2001, when he would have served ten years in this form of detention. This decision was upheld by the Frankfurt am Main Court of Appeal in October 2001, finding, as had the lower court, that the applicant’s dangerousness necessitated his continued detention.   Both Courts relied on Article 67 d § 3 of the Criminal Code, as amended in 1998. Under that provision, applicable also to prisoners whose preventive detention had been ordered prior to the amendment, the duration of a convicted person's first period of preventive detention could be extended to an unlimited period of time. Under the version of the Article in force at the time of the applicant's offence and conviction, a first period of preventive detention could not exceed ten years.   In February 2004 the Federal Constitutional Court dismissed the applicant’s constitutional complaint against these decisions in a leading judgment, holding that the prohibition of retrospective punishment under the German Basic Law did not extend to measures such as preventive detention, which had always been understood as differing from penalties under the Criminal Code’s twin-track system of penalties on the one hand and measures of correction and prevention on the other.     Complaints, procedure and composition of the Court   The applicant complained under Article 5 § 1 that his continued preventive detention violated his right to liberty. In particular he alleged that there was not a sufficient causal connection between his conviction in 1986 and his continued detention after the completion of ten years in preventive detention. He further complained under Article 7 § 1 that the retrospective extension of his detention from a maximum of ten years to an unlimited period of time violated his right not to have a heavier penalty imposed on him than the one applicable at the time of his offence.   The application was lodged with the European Court of Human Rights on 24 May 2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President, Renate Jaeger (Germany), Karel Jungwiert (Czech Republic), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), Mirjana Lazarova Trajkovska (“The former Yugoslav Republic of Macedonia”), Zdravka Kalaydjieva (Bulgaria), judges,   and Claudia Westerdiek , Section Registrar.   Decision of the Court   Article 5 § 1   The Court first confirmed that the applicant's preventive detention before expiry of the ten-year-period was covered by Article 5 § 1 (a) as being detention "after conviction" by the sentencing court.   As regards his preventive detention beyond the ten-year period, however, the Court found that there was no sufficient causal connection between his conviction and his continued deprivation of liberty. When the sentencing court ordered the applicant’s preventive detention in 1986 this decision meant that he could be kept in this form of detention for a clearly defined maximum period. Without the amendment of the Criminal Code in 1998 the courts responsible for the execution of sentences would not have had jurisdiction to extend the duration of the detention.   The Court moreover found that the applicant’s continued detention had not been justified by the risk that he could commit further serious offences if released, as these potential offences were not sufficiently concrete and specific so as to fall under sub-paragraph (c) of Article 5 § 1. Furthermore, the applicant could not have been kept as a “person of unsound mind” within the meaning of Article 5 § 1 (e). The Frankfurt am Main Court of Appeal had found that he no longer suffered from a serious mental disorder, which had been established earlier by the lower courts.   The Court therefore unanimously concluded that the applicant’s preventive detention beyond the ten-year period amounted to a violation of Article 5 § 1.   Article 7 § 1   The Court principally had to determine whether preventive detention was to be qualified as a penalty for the purpose of Article 7 § 1. Like a prison sentence, preventive detention entailed a deprivation of liberty. In practice in Germany, persons subject to preventive detention were detained in ordinary prisons. There were minor alterations to the detention regime, but no substantial difference could be discerned between the execution of a prison sentence and that of a preventive detention order. Moreover, pursuant to the Execution of Sentences Act both forms of detention served the aim of protecting the public and helping the detainee to become capable of leading a responsible life outside prison.   The Court further noted, agreeing with the findings of the Council of Europe’s Commissioner for Human Rights and the European Committee for the Prevention of Torture about preventive detention in Germany, that there was currently no sufficient psychological support specifically aimed at prisoners in preventive detention that would distinguish their condition of detention from that of ordinary long-term prisoners.   As to the severity of preventive detention, the Court noted that following the change in law in 1998 the measure no longer had a maximum duration and that the condition for its suspension on probation – there being no danger the detainee would re-offend – was difficult to fulfil. The measure was therefore among the severest which could be imposed under the German Criminal Code. The Court therefore concluded that preventive detention was indeed to be qualified as a penalty.   The Court was further not convinced by the Government’s argument that the extension of the applicant’s detention merely concerned the execution of the penalty imposed on the applicant by the sentencing court. Given that at the time of the offence the applicant could have been kept in preventive detention only for a maximum of ten years, the extension constituted an additional penalty which had been imposed on the applicant retrospectively.   The Court therefore unanimously concluded that there had been a violation of Article 7 § 1.   Article 41 (just satisfaction)   The Court awarded the applicant 50,000 euros in respect of non-pecuniary damage.   ***   The judgment is available in English and French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ( http://www.echr.coe.int ).   Press contacts Nina Salomon (tel + 33 (0)3   90 21 49 79) or Stefano Piedimonte (tel : + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel : + 33 (0)3 88 41 35 30)   Kristina Pencheva-Malinowski (tel : + 33 (0)3 88 41 35 70)   Céline Menu-Lange (tel : + 33 (0)3 90 21 58 77)   Frédéric Dolt (tel : + 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.