M. v. Germany, no. 19359/04, has become final. It was also decided to rule on the admissibility and merits of the application at the same time
(Article 29 § 1). In view of the fact that the judgment of 17 December 2009 in the case of M. v. Germany became final on 10 May 2010, the President decided on 20 May 2010 that the proceedings in the application at issue be resumed and granted priority to the application (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's previous convictions and the order for his preventive detention and execution thereof
It sentenced him to three years and six months' imprisonment and ordered his preventive detention pursuant to Article 66 of the Criminal Code
(see paragraphs 26-27 below). The court found that the applicant had sexually assaulted and abused a thirteen-year-old boy who, after having drunk alcoholic beverages with the applicant in front of the Bochum train station, had agreed to spend the night in the applicant's apartment for fear of disputes with his mother. The court, having consulted a medical expert, considered that the applicant had acted with full criminal responsibility.
He suffered from a dissocial personality disorder which was characterized notably by a lack of feelings of guilt. That disorder did not, however, amount to an illness diminishing his criminal responsibility.
nine-year-old girl committed shortly after his release from prison in 1985 and sexual abuse of a five-year-old boy and an eight-year-old boy committed in May 1986 shortly after his previous conviction. He had committed all previous offences with full criminal responsibility.
On 10 March 2003 it dismissed that request, considering that the applicant should make a therapy aimed at changing his conduct, but that this did not necessitate his treatment in a psychiatric hospital.
27 March 2006.
B. The proceedings at issue
1. The decision of the Aachen Regional Court
It agreed in this respect with the conclusions drawn by two medical experts in a psychiatric expert report dated 7 April 2006 and in an additional psychological expert report dated 3 April 2006 who had also found that the applicant suffered from a serious dissocial personality disorder.
The Regional Court further took the view that the therapies the applicant had made in the past years had not brought about any change in his propensity to commit offences.
2. The decision of the Cologne Court of Appeal
3. The decision of the Federal Constitutional Court
C. Subsequent developments
(see paragraphs 29 and 31 below), refused to suspend the further execution of the applicant's preventive detention and to grant probation. It found that it could not be expected that the applicant, owing to his criminal tendencies, would no longer commit offences if released. The court endorsed the findings of the psychological expert it had consulted, who had confirmed that the applicant suffered from a dissocial personality disorder and had not yet sufficiently reflected upon his alcohol and drug consumption.
It considered that therefore, the applicant was liable to commit robberies, assaults and sexual assault of minors if released.
16 July 2010, endorsed the reasons given by the Regional Court by reference to similar decisions taken by several further Courts of Appeal
(see for examples paragraph 35 below) and decided to submit the case to the Federal Court of Justice. It sought a preliminary ruling on the question whether, following this Court's judgment in the case of M. v. Germany, the current version of Article 67d § 3 of the Criminal Code (see paragraph 31 below), or Article 67d § 1 of the Criminal Code, in the version in force prior to 31 January 1998 (see paragraph 30 below), was applicable in cases parallel to the M. v. Germany case.
II. RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE
M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009).
The provisions relevant to the present case can be summarised as follows.
A. The order of preventive detention by the sentencing court
B. The order for execution of the placement in preventive detention
C. Judicial review and duration of preventive detention
D. Provisions on the detention of mentally ill persons
E. The application of the Court's findings in the M. v. Germany case by the domestic courts
file no. 5 StR 60/10, disagreed with the fourth senate on that point in relation to a different provision on retrospective preventive detention). Therefore, court decisions concerning orders of preventive detention had to be based on the law in force at the time of the offence.
6 July 2010, file no. 4 Ws 157/10; Karlsruhe Court of Appeal, decision of 15 July 2010, file no. 2 Ws 458/09; and Schleswig-Holstein Court of Appeal, decision of 15 July 2010, file no. 1 Ws 267/10).
It was therefore for the legislator to execute the Court's judgment in the
M. case. These Courts of Appeal accordingly did not terminate the preventive detention of the persons concerned (see, in particular, Celle Court of Appeal, decision of 25 May 2010, file no. 2 Ws 169-170/10; Stuttgart Court of Appeal, decision of 1 June 2010, file no. 1 Ws 57/10; Koblenz Court of Appeal, decision of 7 June 2010, file no. 1 Ws 108/10; Nuremberg Court of Appeal, decision of 24 June 2010, file
no. 1 Ws 315/10; and Cologne Court of Appeal, decision of 14 July 2010,
file no. 2 Ws 428/10).
of Appeal, decision of 30 September 2010, file no. 1 Ws 108/10).
On 9 November 2010 the fifth senate of the Federal Court of Justice decided to consult notably the fourth senate whether it intended to uphold its view on that point, which differed from that of the fifth senate
(file no. 5 StR 394/10 and others). Unlike the fourth senate in its decision of 12 May 2010 (file no. 4 StR 577/09; see paragraph 33 above), the fifth senate considered that in cases parallel to that of M., the detainees concerned were not to be released automatically without a further examination on the merits. However, if applied retrospectively, Article 67d § 3 of the Criminal Code had to be interpreted restrictively in the light of the judgment in M. v. Germany. Preventive detention could from now on only be executed beyond the ten-year point in those parallel cases if specific circumstances in the detainee's personality or conduct disclosed an extreme risk of the most serious violent or sexual offences.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court; ...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...”
A. Admissibility
B. Merits
1. The parties' submissions
28 March 1996, which already exceeded a period of ten years, breached his right to liberty under Article 5 § 1 of the Convention. He argued that preventive detention, being a preventive measure, was not authorised under any of the sub-paragraphs (a) to (f) of that provision. In particular, there was no sufficient causal connection for the purposes of sub-paragraph (a) between his conviction in 1993 and his preventive detention, the execution of which had been ordered only subsequently in 1996 by the courts responsible for the execution of sentences.
He was not of “unsound mind” within the meaning of that provision as he did not suffer from a true mental disorder. It had been confirmed by numerous psychiatric experts that he did not sufferer from a pathological mental disorder and had thus committed his offences with full criminal responsibility. Moreover, there was no recent expert report proving that he was mentally ill. The domestic courts had also never based their decision to further detain him on a mental illness. In any event, his preventive detention could not be considered as lawful under the said provision as that detention was not executed in an institution appropriate for mental health patients in view of the completely insufficient offers of treatment in prison.
sub-paragraph (e) of Article 5 § 1. On the contrary, the preventive detention of the applicant in the present case was justified under sub-paragraph (e) of the said provision. The sentencing Bochum Regional Court had found that the applicant had acted with full criminal responsibility but suffered from a personality disorder (see paragraph 6 above). In the Government's view, that personality disorder had to be qualified as a “true mental disorder” and the applicant thus had to be considered as of unsound mind.
The Government further referred to the findings of the Aachen Regional Court in 2008 in the proceedings for judicial review of the applicant's continued preventive detention in relation to the applicant's dissocial personality and the lack of sufficient consideration he gave to his alcohol and drug consumption (see paragraph 19 above) to support their view.
2. The Court's assessment
a. Recapitulation of the relevant principles
case-law on Article 5 § 1 of the Convention, which have been summarised in its judgment of 17 December 2009 in the case of M. v. Germany, no. 19359/04, as follows:
“86. Article 5 § 1 sub-paragraphs
(a) to (f) contain an exhaustive list of permissible grounds for
deprivation of liberty, and no deprivation of liberty will be lawful
unless it falls within one of those grounds (see, inter alia,
Guzzardi v. Italy,
6 November 1980, § 96, Series A
no. 39; Witold Litwa v. Poland, no. 26629/95, § 49,
ECHR 2000 III; and Saadi v. the United Kingdom [GC],
no. 13229/03, § 43, ECHR 2008 ...). ...
87. For the purposes of sub-paragraph (a) of Article 5 § 1, the word “conviction”, having regard to the French text (“condamnation”), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi, cited above, § 100), and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50).
88. Furthermore, the word “after”
in sub-paragraph (a) does not simply mean that the “detention”
must follow the “conviction” in point of time: in
addition, the “detention” must result from, follow and
depend upon or occur by virtue of the “conviction” (see
Van Droogenbroeck, cited above, § 35). In short, there
must be a sufficient causal connection between the conviction and the
deprivation of liberty at issue (see Weeks v. the United Kingdom,
2 March 1987, § 42, Series A no. 114; Stafford v. the
United Kingdom [GC], no. 46295/99, § 64, ECHR
2002 IV;
Waite v. the United Kingdom, no. 53236/99, §
65, 10 December 2002; and Kafkaris v. Cyprus [GC], no.
21906/04, § 117, ECHR 2008 ...). ...
89. Furthermore, under sub-paragraph (c) of Article 5 § 1, detention of a person may be justified “when it is reasonably considered necessary to prevent his committing an offence”. However, that ground of detention is not adapted to a policy of general prevention directed against an individual or a category of individuals who present a danger on account of their continuing propensity to crime. It does no more than afford the Contracting States a means of preventing a concrete and specific offence (see Guzzardi, cited above, § 102; compare also Eriksen, cited above, § 86). This can be seen both from the use of the singular (“an offence”) and from the object of Article 5, namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion (see Guzzardi, ibid.).”
sub-paragraph (e) of Article 5 § 1, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Varbanov v. Bulgaria, no. 31365/96, §§ 45 and 47, ECHR 2000 X; Hutchison Reid v. the United Kingdom, no. 50272/99, § 48, ECHR 2003 IV; and Shtukaturov v. Russia, no. 44009/05, § 114,
27 March 2008).
b. Application of these principles to the present case
Mr M.'s preventive detention, which, as in the present case, was ordered by the sentencing court under Article 66 § 1 of the Criminal Code, was covered by sub-paragraph (a) of Article 5 § 1 in so far as it had not been prolonged beyond the statutory maximum period applicable at the time of that applicant's offence and conviction. In particular, the causal connection between the applicant's criminal conviction and his preventive detention was not broken due to the fact that the court responsible for the execution of sentences, which itself did not impose a “conviction” on the applicant for lack of a finding of guilt of a (new) offence, had to order the execution of the preventive detention imposed on the applicant by the sentencing court (see ibid., §§ 95-96 and 97-105). The reasoning in that judgment, from which it sees no ground to depart, applies mutatis mutandis in the present case.
(see paragraph 31 above), which was declared applicable also to preventive detention orders which had been made – as had the order against the applicant – prior to the entry into force of that amended provision (section 1a § 3 of the Introductory Act to the Criminal Code; see paragraph 31 above), the applicant would have been released when ten years of preventive detention had expired, irrespective of whether he was still considered dangerous to the public.
M. v. Germany (cited above, §§ 92-101), that there was not a sufficient causal connection between the applicant's conviction by the sentencing court and his continued deprivation of liberty beyond the period of ten years in preventive detention ordered in the proceedings at issue. His continuing detention after 26 March 2006 was therefore not justified under
sub-paragraph (a) of Article 5 § 1.
It is true that the domestic courts, relying on the findings of a psychiatric and a psychological expert, considered that the applicant suffered from a serious dissocial personality disorder and was therefore liable to reoffend (see paragraphs 12-13 above).
As shown above, it is the psychiatric hospitals which are considered under German law to be the appropriate institutions to provide conditions of detention adapted to mentally ill persons. Therefore, there was no sufficient relationship between the detention of the applicant as an alleged mental health patient and his placement and conditions of detention in prison.
It further takes the view – and this is uncontested by the parties – that none of the other sub-paragraphs of Article 5 § 1 can serve to justify the applicant's detention at issue.
II. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
A. Admissibility
B. Merits
1. The parties' submissions
M. v. Germany, no. 19359/04. They referred to their observations made in relation to Article 5 in the present application and to those made in relation to Article 7 in the case of M. v. Germany.
2. The Court's assessment
a. Recapitulation of the relevant principles
“118. Article 7 embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). While it prohibits in particular the retrospective application of the criminal law to an accused's disadvantage (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260 A) or extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy (see Uttley v. the United Kingdom (dec.), no. 36946/03, 29 November 2005, and Achour v. France [GC], no. 67335/01, § 41, ECHR 2006 IV). ...
120. The concept of “penalty” in
Article 7 is autonomous in scope.
To render the protection
afforded by Article 7 effective the Court must remain free to go
behind appearances and assess for itself whether a particular measure
amounts in substance to a “penalty” within the meaning of
this provision (see Welch v. the United Kingdom, 9 February
1995, § 27, Series A no. 307 A; Jamil v. France, 8
June 1995, § 30, Series A no. 317 B; and Uttley,
cited above). The wording of Article 7 paragraph 1, second sentence,
indicates that the starting-point in any assessment of the existence
of a penalty is whether the measure in question is imposed following
conviction for a “criminal offence”. Other relevant
factors are the characterisation of the measure under domestic law,
its nature and purpose, the procedures involved in its making and
implementation, and its severity (see Welch, cited above, §
28; Jamil, cited above, § 31; Adamson v. the United
Kingdom (dec.), no. 42293/98,
26 January 1999; Van der
Velden v. the Netherlands (dec.), no. 29514/05,
ECHR 2006 XV;
and Kafkaris, cited above, § 142). The severity of the
measure is not, however, in itself decisive, since, for instance,
many non-penal measures of a preventive nature may have a substantial
impact on the person concerned (see Welch, cited above, §
32; compare also Van der Velden, cited above).”
b. Application of these principles to the present case
M. v. Germany – was prolonged with retrospective effect, under a law enacted after the applicant had committed his offence.
M. v. Germany (cited above, §§ 124-133) that preventive detention under the German Criminal Code, having notably regard to the facts that it is ordered by the criminal courts following a conviction for a criminal offence and that it entails a deprivation of liberty which, following the change in the law in 1998, no longer has any maximum duration, is to be qualified as a “penalty” for the purposes of the second sentence of Article 7 § 1 of the Convention. It again sees no reason to depart from that finding in the present case.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
§§ 3 (a) and 4.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.”
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
A. The parties' submissions
M. v. Germany. Referring to recent decisions taken by the
Schleswig-Holstein, Karlsruhe, Frankfurt am Main and Hamm Courts of Appeal (see paragraphs 33-34 above), they took the view that it was possible for the courts responsible for the execution of sentences to interpret German law in compliance with the Convention, wherever relevant.
The proceedings were currently still pending before the Federal Court of Justice which would decide on the applicant's release in due course.
The Government, referring to two decisions dated 12 May 2010 (file
no. 4 StR 577/09) and 21 July 2010 (file no. 5 StR 60/10; see in detail paragraphs 33 and 36 above), argued that two senates of that court had already considered preventive detention in similar cases to be in breach of the Convention. The applicant thus had an effective remedy before the domestic courts but could not obtain his release before this Court.
B. The Court's assessment
(see, among other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 VIII; Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 IV; and Fatullayev v. Azerbaijan, no. 40984/07, § 173, 22 April 2010).
§§ 174-177).
19 February 2010 (ibid., PP 6 and part B., § 4 of the Action Plan) lays the primary responsibility for implementing and enforcing the rights and freedoms of the Convention on the national authorities. It notes that several Courts of Appeal, as well as a senate of the Federal Court of Justice, on the contrary, have considered it possible to interpret German law in accordance with the Convention (see paragraphs 33-34 above) and that the Government in the present proceedings agreed with that view. In the light of the foregoing, the Court does not consider it necessary, at present, to indicate any specific or general measures to the respondent State which are called for in the execution of this judgment. It would, however, urge the national authorities, and in particular the courts, to assume their responsibility for implementing and enforcing speedily the applicant's right to liberty, a core right guaranteed by the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicant further claimed at least EUR 98,800 in respect of
non-pecuniary damage suffered as a result of his preventive detention since 28 March 1996, that is, EUR 19 per day of preventive detention.
He requested in person that all payments be made into his lawyer's account.
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,
(i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 13 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
