Communicated on 17 June 2014
FIFTH SECTION
Application no. 23279/14
Karl-Heinz BERGMANN
against Germany
lodged on 18 March 2014
STATEMENT OF FACTS
The applicant, Mr Karl-Heinz Bergmann, is a German national, who was born in 1943 and is currently detained in the centre for persons in preventive detention on the premises of Rosdorf Prison. He is represented before the Court by Mr A. Sommerfeld, a lawyer practising in Soest.
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
Between 1966 and 1984, the applicant was convicted by the criminal courts five times. He was found guilty of sexual assault of a seven-year-old girl and attempted rape of a fourteen-year-old girl, committed under the influence of alcohol, and of attempted sexual acts with a thirteen-year-old boy. He was further found to have committed criminal acts, including arson and strangulating a ten-year-old boy during a burglary, without criminal responsibility as a result of drunkenness. He was sentenced, in particular, to terms of imprisonment ranging from six months to ten years.
On 18 April 1986 the Hannover Regional Court convicted the applicant of two counts of attempted murder, combined with attempted rape in one case, and of two counts of dangerous assault. It sentenced him to fifteen 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 between 7 July 1985 and 3 October 1985, the applicant had stabbed a nineteen-year-old female cyclist in the back in a life-threatening manner for sexual gratification, had stabbed a male cyclist he had mistaken for a woman twice in the back and at the temple for sexual gratification and had stabbed a twenty-three-year-old woman three times in a life-threatening manner in an attempt to rape her. He had committed these offences under the influence of alcohol in a park in Hannover. Being drunk, he had finally broken into a house, had strangulated a four-year-old girl and had injured her with a knife below the waist for sexual gratification. He had been arrested on 9 October 1985.
Having consulted two medical experts, the Regional Court found that the applicant had acted with diminished criminal responsibility (Article 21 of the Criminal Code, see Relevant domestic law and practice below) at the time of his acts as a result of his alcohol intoxication. The applicant was further diagnosed with sexual deviance, a personality disorder, and with an organic psycho syndrome, which was probably a consequence of his long‑lasting alcohol abuse. As long as the applicant did not drink alcohol, these abnormalities did not affect his criminal responsibility as he was able to control his aggressions. However, combined with the consumption of alcohol, they led to his criminal responsibility being diminished.
The Regional Court further considered that the applicant’s preventive detention had to be ordered under Article 66 § 2 of the Criminal Code. Due to his personality disorder, the applicant had a propensity to commit serious offences which seriously harmed their victims physically and mentally. As confirmed by the two medical experts, there was a high risk that the applicant would commit further violent offences for sexual gratification, similar to those he had been found guilty of, if released. He therefore presented a danger to the general public.
The Regional Court finally decided not to order the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code (see Relevant domestic law and practice below). The court endorsed the experts’ finding that the applicant’s personality disorder could no longer be treated because his sexually deviant aggressive behaviour had lasted for decades and because the applicant would be unable to pursue psychotherapeutic treatment in view of his limited intellectual facilities. Public security could therefore be better safeguarded by placing the applicant in preventive detention.
On 12 June 2001 the applicant, having fully served his term of imprisonment, was placed for the first time in preventive detention, executed in prison. He had thus served ten years in preventive detention on 11 June 2011.
The continuation of the applicant’s preventive detention was ordered by the courts dealing with the execution of sentences at regular intervals. It was ordered, in particular, by the Lüneburg Regional Court on 5 October 2012.
2. The proceedings at issue
(a) The decision of the Lüneburg Regional Court
On 26 July 2013 the Lüneburg Regional Court, having consulted the Celle prison authorities and the prosecution and having heard the applicant in person as well as his counsel who represented him throughout the proceedings before the domestic courts, ordered the applicant’s preventive detention to continue. The Regional Court further ordered the Rosdorf Prison authorities to offer to the applicant, within three months from the date on which its decision became final, a specific anti-hormonal therapy aimed at reducing his sadistic phantasies and his libido, and thus his dangerousness.
As regards the applicant’s preventive detention, the Regional Court considered that the requirements laid down in Article 316f § 2, second sentence, of the Introductory Act to the Criminal Code (see Relevant domestic law and practice below) for ordering the continuation of that detention were met.
The Regional Court confirmed that the said transitional provision was applicable to the applicant’s case. It noted that at the time of his last offence on 3 October 1985, the applicant’s first placement in preventive detention could not exceed ten years. It was only following the entry into force of the Combating of Sexual Offences and Other Dangerous Offences Act on 31 January 1998 (see Relevant domestic law and practice below) that the courts dealing with the execution of sentences could prolong preventive detention without any maximum duration. The applicant therefore fell within the category of detainees whose preventive detention had been prolonged retrospectively, as defined by the Federal Constitutional Court in its judgment of 4 May 2011 (see Relevant domestic law and practice below). The Regional Court further noted that Article 316f § 2, second sentence, of the Introductory Act to the Criminal Code had had regard to, and had taken over, the standards set up by the Federal Constitutional Court in its said judgment for a retrospectively ordered or retrospectively prolonged preventive detention to continue.
The Regional Court considered that, in accordance with Article 316f § 2, second sentence, of the Introductory Act to the Criminal Code, the applicant suffered from a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act (see Relevant domestic law and practice below). It endorsed the findings made on that point by psychiatric expert W., in his report dated 8 June 2013, which the latter had been obliged to draw up on the basis of the case files as the applicant had refused having himself examined. Expert W. had confirmed that the applicant suffered from sexual sadism, a sexual deviation, and was addicted to alcohol, even though he had not drunk since he has been detained. The Regional Court stressed that expert W.’s assessment confirmed the findings made by a number of previous experts, and notably the findings made by two experts in January and May 2011 who had diagnosed the applicant with a sexual preference disorder with sadistic-masochist, fetishist and paedophile elements and with alcohol addiction without current consumption of alcohol.
Furthermore, the Regional Court found that, as required by Article 316f § 2, second sentence, of the Introductory Act to the Criminal Code, there was still a very high risk that the applicant, owing to specific circumstances relating to his person and his conduct, would commit the most serious sexually motivated violent offences, similar to those he had been convicted of, if released. Endorsing the findings made by expert W., in accordance with the above-mentioned previous expert reports, also in this respect, the court noted that the applicant admitted his sadistic phantasies, but had been unable to address them in a therapy. He currently no longer participated in any offers or activities for persons in preventive detention. The Regional Court stressed that, in his assessment of the applicant’s dangerousness, the expert had taken into consideration the applicant’s advanced age of 69 years. However, he had convincingly explained that the applicant’s sexual deviation had not yet been considerably alleviated thereby. Furthermore, his alcohol addiction had not yet been treated adequately. However, the consumption of alcohol further increased the high risk that the applicant would commit sexual or violent offences again if released.
The Regional Court further considered that the prolongation of the preventive detention of the applicant, who has been detained for almost thirty years, was still proportionate in view of the considerable threat he posed to the public. It noted in that context that the applicant’s placement in a supervised residence which it had suggested in its previous decision had proved impossible in practice.
As regards its order, based on Article 67d § 2 of the Criminal Code, read in conjunction with Article 66c § 1 no. 1 of the Criminal Code (see Relevant domestic law and practice below), that the Rosdorf Prison authorities offer the applicant a specific anti-hormonal therapy, the Regional Court found that that order was necessary to guarantee the applicant sufficient care in preventive detention. Expert W. had stressed, as he had already done in 2012, that the prison authorities at least had to attempt to treat the applicant, who was ready to undergo a treatment with medication. The anti-hormonal therapy to be offered had proved to diminish sadistic phantasies and the libido and could therefore reduce the applicant’s dangerousness.
(b) The decision of the Celle Court of Appeal
On 1 August 2013 the applicant lodged an appeal against the Regional Court’s decision, for which he submitted reasons on 14 August 2013. He argued, in particular, that his preventive detention, a penalty which had been prolonged retrospectively, failed to comply with the Convention.
On 2 September 2013 the Celle Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed that the requirements laid down in Article 316f § 2, second sentence, of the Introductory Act to the Criminal Code for ordering the continuation of the applicant’s preventive detention were met.
Having regard to the report submitted by expert W., the Court of Appeal considered that the applicant suffered from a mental disorder as defined in section 1 § 1 of the Therapy Detention Act. Referring to the Federal Constitutional Court’s case-law (see Relevant domestic law and practice below), it found that a mental disorder under that Act did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see Relevant domestic law and practice below). Specific disorders in a person’s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act. The applicant’s sexual sadism and his alcohol addiction without current consumption of alcohol amounted to a mental disorder within the meaning of that provision.
Moreover, there was still a very high risk that, if released, the applicant would commit the most serious violent and sexual offences, similar to those he had been convicted of, owing to specific circumstances relating to his person and his conduct. The applicant’s dangerousness had not been reduced in a therapy. He had not become less dangerous by his advancing age either. He currently no longer made any therapy and kept trivialising his offences. Moreover, the expert had confirmed that his mental illness was difficult to treat.
(c) The decision of the Federal Constitutional Court
On 24 September 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Lüneburg Regional Court and of the Celle Court of Appeal. He claimed that the order for the continuation of his preventive detention violated his constitutional right to liberty, read in conjunction with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law.
The applicant argued that under the European Court of Human Rights’ well-established case-law (he referred to M. v. Germany, no. 19359/04, ECHR 2009), the retrospective prolongation of a person’s preventive detention, a penalty, beyond the former ten-year time-limit breached the prohibition on retrospective penalties under Article 7 of the Convention and did not comply with sub-paragraph (a) of Article 5 § 1 of the Convention. Moreover, his continuing preventive detention could not be justified under sub-paragraph (e) of Article 5 § 1 either. He did not suffer from a mental disease as required by that provision. In addition, the notion and scope of “mental disorder” under the applicable provisions of domestic law and in the domestic courts’ case-law was unclear.
The applicant further stressed that the Regional Court had recommended his placement in a supervised residence. In these circumstances, his continued preventive detention on the premises of Rosdorf Prison was no longer proportionate. He conceded, however, that his detention in the new centre for persons in preventive detention on the premises of Rosdorf Prison complied with the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment.
On 29 October 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 2182/13).
The decision was served on the applicant’s counsel on 7 November 2013.
3. The conditions of the applicant’s detention during the execution of the preventive detention order
Since 1 June 2013 the applicant has been detained in the Rosdorf centre for persons in preventive detention, a separate building on the premises of Rosdorf Prison. In that centre, the detainees are placed in apartments measuring 23 square metres including two rooms and a bathroom.
At the time of the proceedings at issue, the applicant no longer participated in any activities for persons in preventive detention. He did not have any contact with persons outside prison. He had proved reliable during leaves under escort to the city of Celle.
B. Relevant domestic law and practice
1. Provisions on preventive detention and the execution thereof
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 on preventive detention notably in the Criminal Code have been amended since then, in particular, by the Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung) of 5 December 2012, which entered into force on 1 June 2013. In that Act, the legislator enacted new rules on the execution of preventive detention orders and on the execution of previous prison sentences, having regard to the requirements laid down in the Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 (file nos. 2 BvR 2365/09 and others, see below).
The provisions referred to in the present case provide as follows:
(a) 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.
(b) Judicial review 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 or shall be terminated. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e).
Under Article 67e § 2 of the Criminal Code, in the version in force since 1 June 2013, this time-limit is one year for persons in preventive detention; that time-limit is reduced to nine months after the execution of preventive detention for ten years.
(c) Duration of preventive detention
(i) General provision
Article 67d § 2 of the Criminal Code provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release. Since 1 June 2013, Article 67d § 2 provides, in addition, that the court shall equally suspend on probation further execution of the detention order if it finds that further execution would be disproportionate because the person concerned was not offered, within a time-limit fixed by the court of six months at the most, sufficient care within the meaning of Article 66c § 1 no. 1 of the Criminal Code (see below). If no sufficient care has been offered, it was for the court to fix that time-limit on examination of the suspension of the execution of the detention order and to specify the measures which had to be offered. Suspension of the execution of the detention order shall automatically entail supervision of the conduct of the person concerned.
(ii) Provision in force prior to 31 January 1998
Under Article 67d § 1 of the Criminal Code, in the 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).
(iii) Amended provision in force since 31 January 1998
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 still in force, 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.
(iv) Transitional provision
Article 316f of the Introductory Act to the Criminal Code, which entered into force on 1 June 2013, contains a transitional provision introduced by the Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences.
Article 316f § 1 of the said Act provides that the provisions on preventive detention in the Criminal Code in their new version in force since 1 June 2013 are to be applied if at least one of the offences owing to which preventive detention is to be ordered was committed after 31 May 2013. In all other cases, as a rule, the provisions on preventive detention in the version in force until 31 May 2013 have to be applied (see Article 316f § 2 of the Introductory Act to the Criminal Code). However, the imposition or order for the continuation of preventive detention on the basis of a legislative provision which had not yet entered into force at the time of the last offence at issue, or the imposition or order for the continuation of retrospective preventive detention is only authorised in the following circumstances. The persons concerned must suffer from a mental disorder and, owing to specific circumstances relating to their person or their conduct, it must be highly likely that they will commit the most serious crimes of violence or sexual offences as a result of their mental disorder (see Article 316f § 2, second sentence, of the Introductory Act to the Criminal Code). If these additional requirements for a continuation of preventive detention are no longer met, the court declares the preventive detention terminated; supervision of the offender’s conduct starts on the offender’s release from detention (see Article 316f § 2, fourth sentence, of the said Act).
(d) Execution in practice of preventive detention orders
Article 66c of the Criminal Code, on the manner of execution of preventive detention orders and of previous terms of imprisonment, was introduced by the Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences (and thus entered into force on 1 June 2013). Article 66c, in so far as relevant, provides as follows:
“1. The placement in preventive detention is executed in institutions which
(1) offer the detainee, on the basis of a comprehensive examination for treatment and a plan for the execution of the placement which is to be updated regularly, care
(a) which is individual and intensive as well as suitable for raising and furthering his readiness to participate, in particular psychiatric, psychotherapeutic or social therapeutic treatment, which is tailored to the detainee if standardised offers do not have prospects of success, and
(b) which aims at reducing his dangerousness to the public so far that the execution of the measure may be suspended and probation be granted or that it may be terminated as soon as possible,
(2) guarantee a detention which
(a) places as little as possible a burden on the detainee, complies with the requirements for care under no. 1 and is assimilated to general living conditions in so far as security concerns do not pose an obstacle, and
(b) is executed separately from execution of terms of imprisonment in special buildings or departments in so far as the treatment within the meaning of no. 1 does not exceptionally require something different, and
(3) in order to attain the aim laid down in no. 1 (b)
(a) grant relaxations in the execution of the detention and make preparations for release unless there are compelling reasons not to do so, in particular if there are concrete facts constituting a risk that the detainee would abscond from the execution of preventive detention or abuse the measures in order to commit considerable offences, and
(b) allow for a follow-up care at liberty in close cooperation with public or private institutions.”
Under Article 316f § 3 of the Introductory Act to the Criminal Code, the new Article 66c of the Criminal Code is also applicable to persons who committed the offence(s) with regard to which preventive detention was ordered prior to 31 May 2013.
2. Provisions on criminal liability
Article 20 of the Criminal Code contains rules on the lack of criminal responsibility owing to mental disorders. It provides that a person who, upon commission of an act, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality acts without guilt.
Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that the punishment may be mitigated if the perpetrator’s capacity to appreciate the wrongfulness of the act or of acting in accordance with such appreciation is substantially diminished upon commission of the act owing to one of the reasons indicated in Article 20 of the Criminal Code.
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.
Under section 2 § 1 of the Therapy Detention Act establishments suitable for therapy detention are only institutions which, in particular, can guarantee, by their medical and therapeutic offers, an adequate treatment of the mental disorder of the person concerned on the basis of an individualised plan for treatment and aimed at keeping the therapy detention to a minimum (no. 1). Furthermore, the institutions concerned must allow detention to be executed in the least burdensome manner possible for the detainee, having regard to therapeutic aspects and to the interests of public security (no. 2). They must further be separated, as regards their location and their organisation, from institutions in which terms of imprisonment are executed (no. 3). Under section 2 § 2 of the Therapy Detention Act, in the version in force since 1 June 2013, institutions within the meaning of Article 66c § 1 of the Criminal Code are also suitable for therapy detention if they comply with the requirements of section 2 § 1 nos. 1 and 2 of that Act.
4. Recent case-law of the Federal Constitutional Court
(a) The Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011
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 judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung; ibid., § 89). It stressed that, in line with that openness of the Constitution to public international law, it attempted to avoid breaches of the Convention in the interpretation of the Constitution (ibid., §§ 82 and 89).
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).
The Federal Constitutional Court confirmed its constant case-law that the absolute ban on the retrospective application of criminal law under Article 103 § 2 of the Basic Law did not cover preventive detention. The latter was a measure of correction and prevention, which was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender (see §§ 100-101 and 141‑142 of the Federal Constitutional Court’s judgment). The Federal Constitutional Court noted that the European Court of Human Rights had considered preventive detention to be a “penalty” within the meaning of Article 7 § 1 of the Convention (ibid., §§ 102, 140). It considered that it was not necessary schematically to align the meaning of the constitutional notion of “penalty” to that under the Convention. Recourse should rather be had to the valuations (Wertungen) under the Convention in a result-oriented manner in order to prevent breaches of public international law (ibid., §§ 91 and 141 ss.).
Having regard to the constitutional protection of legitimate expectations in a State governed by the rule of law and the valuations of Article 5 and Article 7 of the Convention, the prolongation of the complainants’ preventive detention beyond the former ten-year maximum period, in particular, was only constitutional in practice if, inter alia, the requirements of Article 5 § 1 (e) were met (ibid., §§ 143 and 151-156). The Federal Constitutional Court expressly referred in that context to the case-law of the European Court of Human Rights according to which the detention of a person as a mental health patient would only be lawful for the purposes of Article 5 § 1 (e) of the Convention if effected in a hospital, clinic or other appropriate institution (ibid., § 155).
(b) The decision of 15 September 2011
In a decision of 15 September 2011 (file no. 2 BvR 1516/11), the Federal Constitutional Court, referring to its judgment of 4 May 2011 (cited above), reiterated that a prolongation of a person’s preventive detention beyond the former ten-year time-limit applicable at the time of his conviction was only possible if the requirements of Article 5 § 1 (e) of the Convention were met.
The Federal Constitutional Court further clarified that the notion of persons “of unsound mind” in Article 5 § 1 (e) of the Convention had been taken up by the legislator in section 1 § 1 of the Therapy Detention Act. In that Act, the legislator had created a new category of “mental disorder” which did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code. Specific disorders in a person’s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act. This notion therefore was not limited to mental illnesses which could be treated clinically, but extended also, in particular, to dissocial personality disorders.
(c) The decision of 11 July 2013 concerning the compatibility with the Basic Law of section 1 § 1 of the Therapy Detention Act
By a decision dated 11 July 2013 the Federal Constitutional Court found that section 1 § 1 of the Therapy Detention Act (see above) was compatible with the Basic Law on the condition that it was interpreted in the following restrictive manner (file no. 2 BvR 2302/11 and 2 BvR 1279/12). Detention or its prolongation under that Act could only be ordered if there was a difference between such detention and detention for serving a term of imprisonment. Furthermore, there must be a high risk that the persons concerned, owing to specific circumstances relating to their person or their conduct, would commit the most serious crimes of violence or sexual offences. In addition, the requirements of Article 5 § 1 (e) of the Convention had to be met. The principles developed in respect of preventive detention which had been ordered or prolonged retrospectively (see above) thus equally applied to detention under the Therapy Detention Act.
The Federal Constitutional Court reiterated in that context that the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act, having regard to the standards flowing from Article 5 § 1 (e), did not require that the disorder was so serious as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code. It further referred to the Court’s case-law relating to Article 5 § 1 (e) (in particular, to Kronfeldner v. Germany, no. 21906/09, 19 January 2012; and B v. Germany, no. 61272/09, 19 April 2012) and found that the detention of a person for being “of unsound mind” could be justified provided that the detention was effected in an appropriate psychiatric institution, which, in turn, necessitated a corresponding intensity of the mental disorder.
COMPLAINTS
The applicant complains under Article 5 § 1 of the Convention that 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. He argues, in particular, that his detention could not be justified under sub-paragraph (e) of Article 5 § 1 because he did not suffer from a mental illness.
The applicant further claims that the retrospective extension of his preventive detention beyond the former ten-year maximum duration violated the prohibition on retrospective punishment under Article 7 § 1 of the Convention.
The applicant refers, in particular, to the Court’s findings in the case of Glien v. Germany (no. 7345/12, 28 November 2013) to support his views.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention as a result of the order, in the proceedings at issue, for the continuation of his preventive detention beyond the ten-year maximum duration applicable at the time of his offences and conviction? In particular, did the deprivation of liberty at issue fall within any of the sub‑paragraphs (a) to (f) of Article 5 § 1?
2. Taking into consideration, in particular, the Court’s considerations 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 offences in the present case, as proscribed by Article 7 § 1 of the Convention?
3. In how far did the applicant’s preventive detention in practice differ in the centre for persons in preventive detention on the premises of Rosdorf Prison, compared to the previous execution of the preventive detention order against him? In particular, which treatment and care was offered to the applicant, having regard to the fact that the domestic courts had diagnosed him with sexual sadism and with alcohol addiction, and which treatment did the applicant actually undergo at the relevant time covered by the proceedings at issue?
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