CASE OF PETSCHULIES v. GERMANY

FIFTH SECTION

CASE OF PETSCHULIES v. GERMANY

(Application no. 6281/13)

JUDGMENT

STRASBOURG

2 June 2016

FINAL

02/09/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Petschulies v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Ganna Yudkivska, President,
Angelika Nußberger,
Erik Møse,
André Potocki,
Yonko Grozev,
Carlo Ranzoni,
Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 26 April 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 6281/13) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Dirk Petschulies (“the applicant”), on 22 January 2013.

2. The applicant, who had been granted legal aid, was represented by Mr A. Alte, a lawyer practising in Osnabrück. The German Government (“the Government”) were represented by one of their Agents, Mr H.‑J. Behrens, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant alleged, in particular, that his preventive detention in a supervised residential facility (betreute Einrichtung) affiliated to a psychiatric hospital, which had been extended retrospectively beyond the former statutory maximum duration of ten years, had been in breach of Article 5 § 1 of the Convention.

4. On 4 June 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1952. At the time of lodging his application, he had been placed in a supervised residential facility in Springe (Germany). He was subsequently released.

A. The applicant’s previous convictions and the order for his preventive detention and the execution thereof

1. Previous convictions

6. Following five convictions for offences including burglary and dangerous assault, in 1977 the Hildesheim Regional Court convicted the applicant of committing offences while in a drunken state. It sentenced him to one year’s imprisonment and ordered his detention in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 35 below). The court found that the applicant’s criminal responsibility had been diminished at the time of the acts, owing to infantile brain damage combined with drunkenness. He was detained in psychiatric hospitals in Göttingen and Moringen from December 1977 to October 1980.

7. In 1981 the Göttingen Regional Court quashed the judgment of the Hildesheim Regional Court of 1977. It convicted the applicant of intentionally committing offences while in a drunken state and sentenced him to one year and eight months’ imprisonment, without ordering his detention in a psychiatric hospital. The court, having regard to the findings of a psychiatric expert and the results of a re-examination of the applicant’s brain by new technical means, found that he did not suffer and had never suffered from a pathological mental disorder. He had therefore not acted with diminished criminal responsibility. The court considered that the applicant did not have infantile brain damage, and although he had an abnormal personality, he was neither a psychopath nor an alcoholic.

2. The preventive detention order

8. On 11 December 1984 the Hildesheim Regional Court convicted the applicant of seven counts of dangerous assault, four counts of assault, coercion and two counts of attempted coercion. All these offences had been committed between 6 December 1982 and 1 May 1984. The court sentenced him to six years’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraphs 28-29 below).

9. The Hildesheim Regional Court found that the applicant had attacked his victims in a violent manner. The victims had been almost exclusively male and had included schoolchildren. Some had been acquaintances, but others had not been known to the applicant – people in bars or those who had been randomly chosen on the street. He had either punched his victims in the face, kicked them in the face when they had fallen to the ground or set an Alsatian dog on them, which had significantly injured the victims by biting them, sometimes on the stomach and neck. He had attacked two homeless people whom he did not know with a knife. They had been sleeping in an abandoned building. He had injured the hand, lip, chest and thigh of one and the back and finger of another. Objectively, his victims had not provoked any conflict.

10. The Hildesheim Regional Court, having consulted a psychiatric expert and a psychological expert, found that the applicant had acted with full criminal responsibility at the time most of his offences had been committed, despite his prior consumption of alcohol. Only in relation to two of his offences could diminished criminal responsibility as a result of alcohol intoxication not be excluded as a relevant consideration (Article 21 of the Criminal Code, see paragraph 34 below). However, the consumption of alcohol had not been the cause of his offences. He did not suffer from any other pathological mental disorder within the meaning of Article 21 of the Criminal Code. His personality differed from that of the majority of the population in that he lacked empathy and saw himself as a strong and dominating man, without that difference being of a pathological nature. He had a propensity to commit serious violent offences against others, where the victims were significantly injured.

3. The execution of the preventive detention order

11. On 7 May 1990, having fully served his term of imprisonment, the applicant was placed in preventive detention for the first time, initially mainly in Salinenmoor Prison. In view of another prison sentence he had served, by 7 August 2000 he had spent ten years in preventive detention. On the same day, the Lüneburg Regional Court ordered that his preventive detention should continue.

12. On 2 May 2001 the Hildesheim District Court convicted the applicant of assault, finding that he had slapped his daughter in the face while under the influence of alcohol while on home leave from detention, and sentenced him to four months’ imprisonment. The applicant served that sentence in 2002.

13. On 25 August 2003 the applicant was transferred to the detoxification department of Moringen Hospital. By a decision of 18 April 2005 the Göttingen Regional Court then ordered further preventive detention in a psychiatric hospital (Article 63 of the Criminal Code) rather than in a detoxification facility, as his rehabilitation could be better promoted there. The applicant was then transferred to the psychiatric department of Moringen Hospital.

14. The order for the applicant’s continued preventive detention in a psychiatric hospital was subsequently extended. In March 2011 he was authorised to reside provisionally (Probewohnen) in Friedland Castle in Northeim, a supervised residential facility.

B. The proceedings in issue

1. The decision of the Göttingen Regional Court

15. On 19 July 2011 the Göttingen Regional Court again ordered the applicant’s continued preventive detention in a psychiatric hospital, under Article 67d § 3 of the Criminal Code (see paragraph 31 below).

16. The Regional Court considered that the stricter criteria set out by the Federal Constitutional Court in its judgment of 4 May 2011 regarding preventive detention beyond the former ten-year time-limit during the transitional period lasting until 31 May 2013 (see paragraph 39 below) were met in the applicant’s case.

17. The Regional Court found that the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 36 below), which was the cause of his previous offences. Following its own critical review, it endorsed the conclusions about the applicant’s mental condition which S., an experienced and reliable expert in the field of forensic psychiatry, had drawn in his report dated 26 May 2010 and supplemented on 24 April 2011. The expert had completed his report on the basis of case files, as the applicant had refused an examination. S. had stated that, just as at the time of his offences, the applicant still suffered from a dissocial personality disorder with marked psychopathic elements, as defined by the relevant tool for the classification of diseases, the ICD-10 (International Statistical Classification of Diseases and Related Health Problems in its current, revised version). This diagnosis had further been confirmed by the applicant’s treating doctors at Moringen Hospital.

18. Furthermore, the Regional Court considered that there was a high risk that the applicant, owing to specific circumstances relating to his character and conduct, would commit the most serious violent crimes if released from preventive detention. As had been confirmed by S., there was a danger that he would again threaten the lives of others by attacking them, for instance by kicking his victims in the head or setting a dog on them and inciting it to bite them on the neck and face. That risk was particularly high when the applicant – whom the expert had concluded abused alcohol without being addicted, as defined by the ICD-10 – was drunk. Owing to his dissocial personality disorder, the applicant had hardly any inhibitions with regard to injuring others, as he lacked empathy. As he did not question his own perception of a situation, a misinterpreted situation could lead to his using unlimited force against randomly chosen victims who objectively had not provoked any conflict by their conduct.

19. The Regional Court further considered that the applicant’s preventive detention was still proportionate. At that time, there was no residential accommodation outside of preventive detention where his conduct could be closely monitored. In view of his conduct, it was already unclear whether he would be permitted to continue residing in his current residential facility in Friedland Castle. Having regard to the high risk that the applicant would commit the most serious violent offences upon his release, his preventive detention for a period of more than twenty years was not unreasonable.

20. The Regional Court confirmed that the applicant’s rehabilitation could still be better promoted by detention in a psychiatric hospital than by placement in a preventive detention facility (Article 67a §§ 1 and 2 of the Criminal Code, see paragraph 32 below). Even though there had been no substantial change in his disorder, there had been some positive development in that he had started residing provisionally in a supervised residential facility.

2. The decision of the Braunschweig Court of Appeal

21. On 19 September 2011 the Braunschweig Court of Appeal, endorsing the reasons given by the Göttingen Regional Court, dismissed the applicant’s appeal as ill-founded.

3. The decision of the Federal Constitutional Court

22. On 24 October 2011 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He claimed that his continued preventive detention in a psychiatric hospital breached his constitutional right to liberty. He argued that the strict criteria for continued preventive detention set out by the Federal Constitutional Court in its leading judgment of 4 May 2011 were not met. Having regard to the fact that his offences – committed under the influence of alcohol – dated back twenty-seven years, that he had not drunk alcohol since then, and that the conditions of his detention had been extensively relaxed, the experts and the courts had not convincingly shown that there was a risk that he would commit a serious violent offence again if released. Moreover, it had not been found by the experts or the domestic courts that his alleged mental disorder had caused the offences in question, nor that he was or had ever been an alcoholic.

23. On 18 July 2012, without giving reasons, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2270/11). The decision was served on the applicant’s counsel on 26 July 2012.

C. The conditions of the applicant’s detention at the time of the proceedings in issue until his release

24. From March 2011 to August 2012 the applicant was authorised to reside provisionally in Friedland Castle in Northeim, a supervised residential facility. He received regular visits from staff members from Moringen Hospital. Three times a week he was allowed to go shopping in Moringen for two hours, and once a week he was allowed to go to Northeim for half a day under escort. The applicant continued his work therapy in Moringen Hospital. He no longer received any specific treatment for his mental condition or the alcohol abuse with which he had been diagnosed. The aim of his stay in the supervised residential facility was to enable him to cope with the requirements of everyday life by drawing on his own resources.

25. In August 2012 the applicant had to return to Moringen Hospital following conflict with the staff at Friedland Castle. From October 2012 onwards he resided provisionally in Gestorf Castle, a supervised residential facility in Springe, with conditions of detention comparable to those in Friedland Castle.

26. In accordance with the Göttingen Regional Court’s decision of 10 July 2014 to terminate his preventive detention, the applicant was released on 15 September 2014.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Provisions on preventive detention

27. A comprehensive summary of the provisions of the Criminal Code and 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 practical execution of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). The provisions referred to in the present case provide:

1. The preventive detention order of the sentencing court

28. Under certain circumstances the sentencing court may, at the time of an offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) 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).

29. 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 has committed three intentional offences and incurred a term of imprisonment of at least one year for each offence, and if he is sentenced to at least three years’ imprisonment for one or more of these offences. 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 the victims either physically or mentally or which cause serious economic damage, the person presents a danger to the general public. For the purposes of that provision, it is not necessary that the perpetrator has been previously convicted or detained.

2. Duration of preventive detention

30. Under Article 67d § 1 of the Criminal Code, in the version in force prior to 31 January 1998, an initial period of preventive detention could not exceed ten years. If the maximum duration was exceeded, the detainee was to be released (Article 67d § 3).

31. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention then a court shall declare the measure terminated, but only if there is no danger that the detainee will commit serious offences resulting in significant psychological or physical harm to the victims. The former maximum duration of an initial period of preventive detention was abolished with immediate effect.

3. Transfer for implementation of a different measure of correction and prevention

32. Article 67a of the Criminal Code contains provisions on the transfer of detainees for the implementation of a different measure of correction and prevention to the measure originally ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, a court may subsequently transfer a person in respect of whom preventive detention has been ordered to a psychiatric hospital or detoxification facility if the person’s reintegration into society can thereby be better promoted.

B. Provisions on criminal liability

33. 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.

34. Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that a punishment may be mitigated if a perpetrator’s capacity to appreciate the wrongfulness of his act or to act in accordance with such appreciation was substantially diminished at the time the act was committed, owing to one of the reasons indicated in Article 20 of the Criminal Code.

C. The detention of mentally ill persons

35. The Criminal Code makes provision for the detention of mentally ill persons as a measure of correction and prevention if 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 him and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts, and is therefore a danger to the general public.

36. 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 1(4) of that Act, the civil sections of a Regional Court may order the placement in a suitable institution of people who may no longer be kept in preventive detention in view of the prohibition on retrospectively extending or imposing preventive detention. Such therapeutic 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 also suffer from a mental disorder owing to which it is highly likely that he will significantly impact upon 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.

D. Recent case-law of the Federal Constitutional Court

1. The Federal Constitutional Court’s leading judgment of 4 May 2011 on preventive detention

37. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning, in particular, the retrospective extension of preventive detention beyond the former ten-year maximum period (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 the impugned provisions on the retrospective extension of preventive 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.

38. 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 people in preventive detention. It found that those provisions did not satisfy the constitutional requirement to establish a difference between preventive detention and detention for a term of imprisonment (Abstandsgebot).

39. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law were to remain 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 extended retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the people concerned, owing to specific circumstances relating to their character or conduct, were highly likely to commit the most serious violent or sexual offences, and whether 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 this Court’s interpretation of the term “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above preconditions were not met, those detainees had to be released no later than 31 December 2011.

40. In its reasoning, the Federal Constitutional Court relied on this Court’s interpretation of Articles 5 and 7 of the Convention 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 to establish a difference between preventive detention and detention for a term of imprisonment, and the principles laid down in Article 7 of the Convention, required individualised and intensified therapy and care to have been offered to the persons concerned.

41. The Federal Constitutional Court confirmed its consistent case-law: the absolute ban on the retrospective application of criminal law under Article 103 § 2 of the Basic Law did not cover preventive detention. Preventive detention was a measure of correction and prevention, a purely preventive measure designed to protect the public from dangerous offenders rather than punish criminal guilt (see §§ 100-101 and 141‑142 of the Federal Constitutional Court’s judgment). The Federal Constitutional Court noted that this Court 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 to align the constitutional notion of “penalty” with its meaning under the Convention. Result-orientated recourse should rather be had to the assessments (Wertungen) under the Convention in order to prevent breaches of public international law (ibid., §§ 91 and 141 ss.).

42. Having regard to the constitutional protection of legitimate expectations in a State governed by the rule of law, and the assessments of Articles 5 and 7 of the Convention, the extension of 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). In that context, the Federal Constitutional Court expressly referred to this Court’s case-law, according to which a person’s detention as a mental health patient would only be lawful for the purposes of Article 5 § 1 (e) of the Convention if in a hospital, clinic or other appropriate institution (ibid., § 155).

2. Subsequent decisions

43. 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 (see paragraphs 37-42 above), reiterated that the extension 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.

44. 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 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 relating to 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 was therefore not limited to mental illnesses which could be treated clinically, but in particular also extended to dissocial personality disorders.

45. The Federal Constitutional Court confirmed that interpretation in a decision dated 11 July 2013 (file no. 2 BvR 2302/11 and 2 BvR 1279/12). It further referred to this 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 in an appropriate psychiatric institution, which in turn necessitated a corresponding and sufficiently severe mental disorder.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

46. The applicant complained that his preventive detention for more than ten years, which had been the maximum period for such detention under the legal provisions applicable at the time he had committed the offences and been convicted, had breached his right to liberty as provided for by Article 5 § 1 of the Convention. The relevant part of that provision reads:

“1. 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:

...

(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; ...”

47. The Government contested that argument.

A. Admissibility

48. The Court considers that the applicant’s detention, which was essentially in a supervised residential facility affiliated to a psychiatric hospital, entailed restrictions on his freedom of movement, notably restrictions on his movements outside the facility, which were sufficiently serious to amount to a deprivation of liberty (compare, mutatis mutandis, Guzzardi v. Italy, 6 November 1980, §§ 92-95, Series A no. 39, and Mancini v. Italy, no. 44955/98, § 17, ECHR 2001‑IX). Indeed, this was not contested by the Government. Article 5 § 1 of the Convention is therefore applicable.

49. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

50. In his application to the Court, the applicant took the view that his preventive detention beyond the former statutory ten-year maximum time‑limit, as a result of the decisions taken by the domestic courts in the proceedings in issue, had breached Article 5 § 1 of the Convention.

51. The applicant argued that he had not been of unsound mind at the time he had committed his offences. His alleged dissocial personality disorder could not be classified as a mental disorder. In finding that he suffered from a mental disorder and was dangerous, which he contested, the Göttingen Regional Court had accepted the conclusions in S.’s insufficiently reasoned expert report without further examination.

52. The applicant further submitted that he had not drunk alcohol since he had been taken into detention thirty years ago, and that he was not and had never been addicted to alcohol. The sentencing Hildesheim Regional Court had not considered him to be an alcoholic who had acted with diminished criminal responsibility as a result of his disease. The offences had been caused by his alcohol intake at the relevant time.

53. Moreover, the applicant claimed that his preventive detention beyond the former statutory ten-year maximum period no longer had a legal basis.

(b) The Government

54. In the Government’s submission, the applicant’s detention complied with Article 5 § 1 of the Convention. It was justified under sub‑paragraph (e) of that provision as detention of a person “of unsound mind”.

55. The Government argued that it had been repeatedly confirmed by medical experts that the applicant suffered from a dissocial personality disorder with narcissistic elements and alcohol abuse. In the proceedings in issue, the expert consulted by the Göttingen Regional Court had again diagnosed the applicant with a dissocial personality disorder with marked psychopathic elements and as suffering from alcohol abuse, both as defined in the ICD-10. In that context, the Government stressed that the applicant had consumed alcohol while on leave from detention and had hit his daughter while under the influence of alcohol. Having regard to S.’s thoroughly reasoned diagnosis, as well as that of the doctors treating the applicant, there had been convincing evidence for the courts’ decision that the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act.

56. In the Government’s view, the mental disorder was also sufficiently serious to amount to a “true” mental disorder for the purposes of Article 5 § 1 (e). The disorder was so serious that the applicant, who lacked any insight into his disease, had to be considered as suffering from psychopathy. In that context, it was irrelevant that his criminal responsibility was not diminished for the purposes of German law.

57. The Government further submitted that the kind and degree of the applicant’s mental disorder had been such as to warrant compulsory confinement at the relevant time. The domestic courts had found that, as a result of his mental disorder, there was a high risk that he would commit the most serious violent offences if released.

58. Furthermore, the applicant’s preventive detention at the relevant time had been in a supervised residential facility affiliated to a psychiatric hospital, which, in the Government’s submission, was a suitable institution for the applicant, who had been classed as a mental health patient. The applicant’s provisional residence in Friedland Castle in Northeim, where restrictions to his liberty had been reduced to the extent that they were minimal, had been the last step in the preparation for his release. Treatment had therefore been limited during that period to regular contact between the staff at the psychiatric hospital and the applicant.

2. The Court’s assessment

(a) Summary of the relevant principles

59. The Court reiterates that the term “persons of unsound mind” in sub‑paragraph (e) of Article 5 § 1 does not lend itself to precise definition, since its meaning continually evolves as research in psychiatry progresses (see Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33, and Rakevich v. Russia, no. 58973/00, § 26, 28 October 2003). An individual cannot be deprived of his liberty on the basis of being of “unsound mind” unless the following three minimum conditions are fulfilled: 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, cited above, § 39, and Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012).

60. Where no other possibility exists, for instance because of a refusal of the person concerned to appear for an examination, a medical expert’s assessment on the basis of the case file of the actual state of that person’s mental health must be sought at least, failing which it cannot be maintained that the person has reliably been shown to be of unsound mind (see Varbanov v. Bulgaria, no. 31365/96, § 47, ECHR 2000‑X, and Constancia v. the Netherlands (dec.), no. 73560/12, § 26, 3 March 2015).

61. A mental disorder may be considered to be of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary as the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (compare, for example, Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003‑IV with further references).

62. Only a narrow interpretation of the exhaustive list of permissible grounds for deprivation of liberty is consistent with the aim of Article 5, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Shimovolos v. Russia, no. 30194/09, § 51, 21 June 2011). However, in deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion, in particular regarding the merits of clinical diagnoses, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see H.L. v. the United Kingdom, no. 45508/99, § 98, ECHR 2004‑IX, and S. v. Germany, no. 3300/10, § 81, 28 June 2012 with further references).

63. For the requirements of sub-paragraph (e) of Article 5 § 1, the relevant time at which a person must be reliably established to be of unsound mind is the date on which the measure depriving that person of his liberty as a result of that condition is adopted (compare Luberti v. Italy, 23 February 1984, § 28, Series A no. 75).

64. Furthermore, there must be some relationship between the permitted deprivation of liberty grounds relied on and the place and conditions of detention. In principle, a person’s “detention” as a mental health patient will only be “lawful” for the purposes of sub-paragraph (e) of Article 5 § 1 if it is in a hospital, clinic or other appropriate institution (see Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93, and Kallweit v. Germany, no. 17792/07, § 46, 13 January 2011 with further references). Moreover, in order for the detention to be “lawful” and not arbitrary, the deprivation of liberty must be shown to have been necessary in the circumstances (see Varbanov, cited above, § 46).

65. As to the meaning to be given to the term “alcoholics” in the light of the object and purpose of Article 5 § 1 (e) of the Convention, the Court reiterates that the object and purpose of this provision cannot be interpreted as only allowing the detention of “alcoholics” in the limited sense of people in a clinical state of “alcoholism”. People who are not medically diagnosed as “alcoholics”, but whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves, can be taken into custody for the protection of the public or for the protection of their own interests, such as health or personal safety. The provision does not, however, permit the detention of an individual merely because of his alcohol intake (see Witold Litwa v. Poland, no. 26629/95, §§ 61-62, ECHR 2000‑III, and Kharin v. Russia, no. 37345/03, § 34, 3 February 2011 with further references).

(b) Application of these principles to the present case

66. The Court is called upon to determine whether, in the light of the above principles, the applicant’s preventive detention resulting from the proceedings in issue was, as the Government contended, justified under sub‑paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”.

(i) Grounds for deprivation of liberty

67. In accordance with the Court’s well-established case-law (see paragraph 59 above), the detention of the applicant for being “of unsound mind” firstly required that, at the time of the decision ordering his continued preventive detention, he was reliably shown to be of unsound mind. In other words, a true mental disorder must have been established before a competent authority on the basis of objective medical expertise.

68. The Court observes that the domestic courts found that the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act, as required under the criteria set out by the Federal Constitutional Court in its judgment of 4 May 2011 regarding preventive detention continuing beyond the former ten-year time-limit. They endorsed the medical experts’ finding that the applicant suffered from a dissocial personality disorder with marked psychopathic elements.

69. The Court further notes that the domestic courts’ conclusion was based in particular on S.’s external psychiatric expert report on the applicant’s mental condition at that time, submitted only three months before the Göttingen Regional Court’s decision. The Court does not subscribe to the applicant’s view that S.’s report was insufficiently reasoned. It has repeatedly confirmed in its case-law (see paragraph 60 above) that, in the event of a person’s refusal to undergo an examination, as in the applicant’s case, the medical expert assessment of the person’s state of mental health on the basis of the case file, as in the present case, is necessary and furthermore sufficient. Moreover, S.’s findings were critically reviewed, and were not simply adopted by the domestic courts. The courts took into account that the conclusions of S., an experienced and reliable expert, were also confirmed by the applicant’s treating doctors in Moringen Hospital, and did not diverge from previous diagnoses.

70. The Court is therefore satisfied that the domestic courts, as the competent authorities, established on the basis of objective medical expertise that the applicant had a mental disorder, at least as defined by domestic law. It remains to be determined whether the domestic courts can also be said to have established that the applicant was “of unsound mind”, that is, that he suffered from a true mental disorder, for the purposes of Article 5 § 1 (e) of the Convention. This was contested by the applicant.

71. In that context, the Court observes that the domestic courts, endorsing the findings of the psychiatric expert they had consulted, found that the applicant suffered from a dissocial personality disorder with marked psychopathic elements, as defined by the relevant tool for the classification of diseases, the ICD-10.

72. As regards the seriousness of that condition, the Court notes that the applicant’s dissocial personality disorder, which essentially remained the same from the time he committed the offences of which he was convicted in 1984, did not amount to a pathological mental disorder. His disorder was therefore not so serious that he was found to have acted with diminished criminal responsibility for the purposes of Article 21, read in conjunction with Article 20 of the Criminal Code (see paragraphs 34 and 33 above) at the time he committed the offences, nor would he currently be found to have diminished criminal responsibility. It could not be excluded that the applicant had acted with diminished criminal responsibility when committing two of the offences, following which his preventive detention was ordered only as a result of his alcohol intoxication at the time of these offences (see paragraph 10 above).

73. As confirmed by the domestic courts, the seriousness of the applicant’s dissocial personality disorder had, however, manifested itself in the specific manner in which he had committed his previous offences. Owing to that disorder and the resulting lack of empathy, he had hardly any inhibitions with regard to injuring others. In addition, the disorder made him fail to question his own perception of a situation. This had repeatedly resulted in his using massive force in an uncontrolled manner against randomly chosen victims who objectively had not provoked any conflict (see paragraph 18 above).

74. The Court reiterates that it has not established a precise definition of the term “persons of unsound mind” in its case-law, a term which does not lend itself to such a definition in view of the developments in psychiatric research (see paragraph 59 above). It further notes that sub-paragraph (e) of Article 5 § 1, unlike sub-paragraph (a), does not only concern detention after a criminal conviction. Further, the term “persons of unsound mind” must be given an autonomous meaning, without the Court being bound by the interpretation of the same or similar terms in domestic legal orders (compare Glien v. Germany, no. 7345/12, § 83, 28 November 2013).

75. The Court has already had occasion to clarify that, for the purposes of the Convention, suffering from a mental disorder which is sufficiently serious so as to exclude or diminish criminal responsibility under German criminal law is not a precondition for considering a person to be “of unsound mind” (see Glien, cited above, § 84). It agrees with the findings of the Federal Constitutional Court (see paragraphs 43-45 above) and the Government’s submissions in this respect.

76. However, the Court has equally stressed that the permissible grounds for deprivation of liberty listed in Article 5 § 1 are to be interpreted narrowly (see paragraph 62 above). In order to amount to a true mental disorder for the purposes of sub-paragraph (e) of Article 5 § 1, the mental disorder in question must be so serious as to necessitate treatment in an institution appropriate for mental health patients (see Glien, cited above, § 85). The Court has observed in this regard that it appeared that the notion of “persons of unsound mind” (“aliéné” in the French version) in Article 5 § 1 (e) of the Convention might be more restrictive than the notion of “mental disorder” (“psychische Störung”) referred to in section 1(1) of the Therapy Detention Act (see Glien, cited above, § 87).

77. In view of these elements, the Court has repeatedly expressed doubts as to whether a person’s dissocial personality or dissocial personality disorder alone could be considered a sufficiently serious mental disorder so as to be classified as a “true” mental disorder for the purposes of Article 5 § 1 (e) (see, in particular, Kronfeldner v. Germany, no. 21906/09, §§ 78-80, 19 January 2012; B v. Germany, no. 61272/09, §§ 78-80, 19 April 2012; and Glien, cited above, §§ 88-90).

78. However, in the present case, the Court finds, even if it admits that it is difficult to distinguish between “mere dissocial” behaviour and mental disorders falling within the ambit of Article 5 § 1 (e), that there were sufficient elements to show that the mental disorder the applicant suffered from was so serious that it could be considered as a true mental disorder for the purposes of Article 5 § 1 (e). Firstly, it notes that, according to the findings of the domestic courts (see paragraph 18 above), the applicant’s personality disorder with marked psychopathic elements, as defined by the ICD-10, was exacerbated by his abuse of alcohol. In this connection, it notes that Article 5 § 1 (e) equally permits the detention of “alcoholics”. Without having to decide whether the requirements of those separate grounds for justification of a deprivation of liberty were also met in the applicant’s case, the Court considers that the alcohol abuse rendered the applicant’s personality disorder and its effects more serious. The extent of his personality disorder can indeed be said to have manifested itself in the manner in which he committed his offences. The offences were committed while he was under the influence of alcohol, involved randomly chosen victims and were characterised by gratuitous brutality. The Court would add that, having regard to the fact that the applicant was again found guilty of having committed assault while under the influence of alcohol at a time when he was in preventive detention (see paragraph 12 above), it is not convinced that there was no longer a risk that the applicant abused alcohol.

79. Moreover, the Court attaches considerable importance to the fact that the domestic authorities had ordered the applicant’s preventive detention in a psychiatric hospital in 2005, several years prior to the impugned decisions in the proceedings in issue. This indicates that the domestic authorities considered that his condition required, or at least stood to benefit from, therapeutic treatment in a psychiatric hospital.

80. The Court is further satisfied that, in accordance with its case-law (see paragraph 59 above), the applicant’s mental disorder was of a kind or degree warranting compulsory confinement. The domestic courts found that there was a high risk that he would commit the most serious violent crimes, notably life-threatening attacks, if released. Moreover, the validity of his continued confinement depended upon the persistence of his mental disorder. Under Article 67d § 3 of the Criminal Code, interpreted in accordance with the requirements set out by the Federal Constitutional Court, the continuation of the applicant’s preventive detention could only be ordered if and as long as there was a high risk that, if released, he would commit further extremely serious violent offences as a result of that disorder.

81. It follows that the applicant was a person “of unsound mind” for the purposes of Article 5 § 1 (e).

(ii) “Lawful” detention “in accordance with a procedure prescribed by law”

82. The Court must also examine whether the applicant’s detention was in a hospital, clinic or other appropriate institution, as is required in order for the detention of a person as a mental health patient to be “lawful” (see paragraph 64 above).

83. The Court observes that, during the relevant period, the applicant was essentially detained in a supervised residential facility affiliated to a psychiatric hospital. It also observes that he received regular visits from the staff members of Moringen Hospital while in that facility. The aim of his detention in the facility was to prepare him for his release and to gradually rehabilitate him by enabling him to cope with the requirements of everyday life on his own, despite his mental condition. Therefore, the suitability for mental health patients of the institution in which he was detained was not called into question by the fact that he no longer received any specific treatment for his mental disorder there.

84. The Court further notes that the applicant’s continued preventive detention was based on Article 67d § 3 of the Criminal Code, which remained applicable during a transitional period, in accordance with the order of the Federal Constitutional Court in its judgment of 4 May 2011. The applicant’s detention therefore complied with national law (compare with Müller v. Germany (dec.), no. 264/13, §§ 63-65, 10 February 2015).

85. Furthermore, the applicant’s preventive detention was necessary in the circumstances and thus not arbitrary, despite the fact that at the relevant time it had already exceeded twenty years. The domestic courts had regard to the fact that, despite the considerable duration of his preventive detention, there was still a high risk that he would commit further extremely serious violent offences, such as dangerous assaults, if released (see paragraph 19 above). The Court considers that that assessment does not disclose any unreasonableness.

86. The applicant’s detention was therefore “lawful” and “in accordance with a procedure prescribed by law” for the purposes of Article 5 § 1.

(iii) Conclusion

87. Accordingly, there has been no violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION

88. The applicant complained that the retrospective extension of his preventive detention – a penalty – beyond the former ten-year time-limit further breached the prohibition on retrospective punishment under Article 7 § 1 of the Convention, which reads:

“1. 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.”

89. The Government contested that argument.

A. The parties’ submissions

90. In the Government’s submission, in respect of his complaint under Article 7 § 1 of the Convention, the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. They argued that in his constitutional complaint to the Federal Constitutional Court he had neither complained with reference to Article 7 of the Convention or to the corresponding provision of the Basic Law (Article 103 § 2), nor in substance of a breach of the prohibition on retrospective punishment.

91. In the Government’s view, a constitutional complaint, which the applicant had been obliged to exhaust, would have been an effective remedy in this respect. They conceded that the Federal Constitutional Court considered that the prohibition on retrospective punishment did not apply to preventive detention, as that measure was not classified as a penalty under German law. However, in its leading judgment of 2011, that court had nevertheless afforded protection in this respect, in that it had strengthened the protection of legitimate expectations in a State governed by the rule of law (see paragraphs 37 and 42 above). Therefore, the applicant had been obliged to rely on his rights under Article 7 of the Convention, at least in substance.

92. The applicant did not comment on this issue.

B. The Court’s assessment

93. The Court reiterates that Article 35 § 1 of the Convention requires that complaints intended to be made at Strasbourg should be made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Cardot v. France, 19 March 1991, § 34, Series A no. 200; Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

94. An applicant must have recourse to available remedies in the domestic system which are effective in respect of the breach of the Convention alleged (see Akdivar, cited above, §§ 65-67; and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015). Therefore, an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail (see, inter alia, Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003‑VI). However, the existence of mere doubts as to the prospects of success of a particular remedy does not absolve an applicant from the obligation to exhaust that remedy (see NA. v. the United Kingdom, no. 25904/07, § 89, 17 July 2008, and S. v. Germany, no. 3300/10, § 112, 28 June 2012 with further references).

95. The Court observes that the applicant – represented by counsel – did not expressly complain of a breach of the prohibition on retrospective punishment by the retrospective extension of his preventive detention in his constitutional complaint dated 24 October 2011, such a prohibition being enshrined in Article 103 § 2 of the Basic Law and Article 7 § 1 of the Convention. His submissions concerning a breach of his constitutional right to liberty (see paragraph 22 above) also cannot be interpreted as raising a complaint, in substance, regarding the retrospective imposition of a heavier penalty.

96. As to the effectiveness of a constitutional complaint in the applicant’s case, the Court notes that, in its leading judgment of 4 May 2011, adopted several months before the applicant lodged his constitutional complaint, the Federal Constitutional Court confirmed its well-established case-law to the effect that – contrary to this Court’s findings in respect of Article 7 § 1 – preventive detention was not to be classified as a penalty under German law. Consequently, the absolute ban on the retrospective application of criminal law under Article 103 § 2 of the Basic Law did not apply to preventive detention (see paragraph 41 above). However, in its examination of the compliance of retrospectively extended preventive detention with the constitutional right to liberty, read in conjunction with the constitutional protection of legitimate expectations in a State governed by the rule of law, the Federal Constitutional Court had express regard to the assessments of, inter alia, Article 7 of the Convention (see paragraph 42 above).

97. In these circumstances, the applicant has failed to demonstrate that a complaint to the Federal Constitutional Court raising, at least in substance, the issue of the prohibition on retrospective punishment, was necessarily bound to fail. He has not explained why it would have been futile to extend his constitutional complaint about a breach of his right to liberty – a complaint which was lodged – to also include a failure to comply with the constitutional protection of legitimate expectations by the retrospective extension of his preventive detention, such protection being an aspect of the constitutional right to liberty. Moreover, he has not explained why he could not have claimed before the Federal Constitutional Court that its interpretation in its judgment of 4 May 2011 of either the constitutional right to liberty, read in conjunction with the constitutional protection of legitimate expectations or the constitutional ban on retrospective punishment, did not to comply with Article 7 § 1 of the Convention, as interpreted by this Court’s recent case-law.

98. It follows that the Government’s objection must be allowed and this part of the application dismissed for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 5 § 1 of the Convention concerning the retrospective extension of the applicant’s preventive detention admissible, and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 5 § 1 of the Convention.

Done in English, and notified in writing on 2 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekGanna Yudkivska
RegistrarPresident

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