CASE OF REINER v. GERMANY

FIFTH SECTION

CASE OF REINER v. GERMANY

(Application no. 28527/08)

JUDGMENT

STRASBOURG 

19 January 2012

FINAL

19/04/2012

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

In the case of Reiner v. Germany,

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

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 13 December 2011,

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

PROCEDURE

1. The case originated in an application (no. 28527/08) 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 an apparently stateless person, Mr Peter Ludwig Reiner (“the applicant”), on 8 June 2008.

2. The applicant, who had been granted legal aid, was initially represented by Mr D. Hartmann, a lawyer practising in Cologne. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, and by their permanent Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

3. The applicant alleged that his continuing preventive detention violated his right to liberty as provided in Article 5 § 1 of the Convention.

4. On 26 August 2008 the President of the Fifth Section granted the applicant’s request to give priority to his application (Rule 41 of the Rules of Court). On 11 September 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1932. When lodging his application, he was detained in Aachen Prison. He currently lives in Erkelenz.

6. The applicant has been registered by the Aachen Pension Office as 80% disabled since 1 January 2005. This finding was based, in particular, on the applicant’s prostate disease, kidney disorder, heart disease and severe walking disability.

A. Background to the case

1. The applicant’s previous convictions and the order for his preventive detention

7. Between 1952 and 1972 the applicant was convicted of numerous offences, which, apart from one conviction for assault, were directed against the property of others. These included fraud, theft and aggravated theft, handling of stolen goods and extortion. The applicant was sentenced nine times to terms of imprisonment of between three months and four years and spent more than nine years in detention.

8. On 6 June 1972 the Cologne Regional Court convicted the applicant on seven counts of joint aggravated robbery. It sentenced him to thirteen years’ imprisonment and ordered his preventive detention.

9. The Regional Court found that the applicant had robbed seven banks between 1968 and 1970 together with one or two accomplices. In each case, he and his accomplice(s) had threatened the bank employees with loaded guns and collected between 4,450 and more than half a million German marks (DEM). Having heard evidence from a medical expert, the Regional Court could not exclude the possibility that the applicant’s criminal responsibility had been diminished at the time of the offences because of an organic brain defect.

10. Relying on Article 42e of the Criminal Code and Article 20a of the Criminal Code, in their versions in force before 1 April 1970, and on Article 42e of the Criminal Code, in its version in force after 1 April 1970 (see paragraphs 43-45 below), the Regional Court also ordered the applicant’s preventive detention. It observed that the applicant had twice been sentenced to terms of imprisonment of at least one year (for several acts of fraud, embezzlement, theft and burglary). In addition, he had spent more than two years in prison on two occasions and was now being sentenced to more than two years’ imprisonment for the robberies at issue. Furthermore, he had a disposition to commit serious offences and was therefore dangerous to the public. Since the age of twenty, he had committed different types of increasingly serious offences against the property of others. Through the offences committed since 1960 and the offences at issue, he had caused substantial material damage and had acted with considerable criminal energy. He did not feel like working and financed his very costly lifestyle through crime.

2. Previous proceedings concerning the execution of the preventive detention order

11. On 17 December 1980 the Krefeld Regional Court suspended on probation, with effect from 17 January 1981, the remainder of the applicant’s prison sentence and his preventive detention as ordered in the Cologne Regional Court’s judgment of 6 June 1972.

12. On 26 October 1984 the Krefeld Regional Court revoked the above‑mentioned suspension on probation as the applicant had committed further offences (driving without a licence on two occasions) and had refused to cooperate with his probation officer.

13. On 8 February 1988 the applicant was arrested and placed in detention in France. After his extradition to Germany, he served the remainder of the sentence imposed on him in the judgment of 1972. Until 19 April 1994 he then served a further prison sentence imposed on him in 1992 for three offences of fraud (obtaining credit on three occasions on false pretences) committed in 1983 and 1984, causing damage amounting to DEM 215,200.

14. On 2 March 1994 the Krefeld Regional Court again suspended on probation the applicant’s preventive detention ordered in the judgment of 1972 pursuant to Article 67c § 1 of the Criminal Code (see paragraph 47 below) and ordered the supervision of his conduct.

15. On 20 December 1999 the Hagen Regional Court revoked the suspension on probation of the applicant’s preventive detention as ordered by the Krefeld Regional Court on 2 March 1994 pursuant to Article 67g § 1 of the Criminal Code (see paragraph 48 below). It had examined the applicant, who had been represented by counsel. The court found that in 1997 the applicant had been convicted on two further counts of fraud causing damage amounting to DEM 200,000, committed in 1996 – that is, during the period of supervision of his conduct – and had been sentenced to two years and ten months’ imprisonment. Moreover, his preventive detention was necessary in view of the purpose of this measure. Despite the fact that he had repeatedly served long prison sentences, the applicant had kept committing increasingly serious offences for fifty years in order to obtain substantial amounts of money. As confirmed by the convincing report of a psychiatric and neurological expert, Sa., it was to be expected that the applicant would commit further offences against the property of others if released.

16. Since 26 January 2000 the applicant, having served the sentence imposed in the judgment of 1997, has been in preventive detention.

17. On 31 October 2000 the Hamm Court of Appeal, having consulted a further psychiatric expert, L., dismissed an appeal by the applicant against the decision of the Hagen Regional Court. It found that there was still a risk that the applicant would commit further acts of fraud causing substantial economic damage if released.

18. On 7 March 2002, 19 May 2004 and 19 July 2006 the Aachen Regional Court dismissed requests by the applicant to suspend on probation his preventive detention. Those decisions were confirmed on appeal by the Cologne Court of Appeal (on 11 June 2002, 13 July 2004 and 10 October 2006 respectively). In the last-mentioned decision the Court of Appeal, endorsing the reasons given by the Regional Court, notably stressed that in view of his age, the applicant was liable to commit acts of fraud rather than robberies. However, such offences equally justified his preventive detention as the applicant was still liable to commit offences causing considerable economic damage, as required by Article 66 § 1 of the Criminal Code (see paragraphs 45-46 below). This had been demonstrated by his past acts of fraud, which had caused considerable damage.

B. The proceedings at issue

1. The proceedings before the Aachen Regional Court

19. On 16 December 2006 the applicant, represented by counsel, requested the Regional Court to suspend on probation his preventive detention, in particular because of his poor state of health.

20. On 14 June 2007 the Aachen Regional Court dismissed the applicant’s request for the suspension on probation of his preventive detention as ordered by the Cologne Regional Court on 6 June 1972. It further declared that no request for review of this decision would be admissible within a one-year period (Article 67e § 3 of the Criminal Code – see paragraph 49 below).

21. The Regional Court found that there was no basis to expect that the applicant, if released, would not commit further serious offences (Article 67d § 2 of the Criminal Code – see paragraph 50 below). In concluding that the applicant still had to be considered dangerous, the Regional Court had regard to the decisions of the Hagen Regional Court of 20 December 1999 and of the Hamm Court of Appeal of 31 October 2000 (see paragraphs 15 and 17 above) and to the reports of the two experts these courts had consulted. It further referred to the reasoning set out in its decision of 19 July 2006 and in the Court of Appeal’s decision of 10 October 2006 (see paragraph 18 above).

22. It further found that it was clear from the report dated 4 January 2007 submitted by the governor of Aachen Prison, who had recommended not suspending on probation the order for the applicant’s preventive detention, that there had not been any developments on his part warranting a different conclusion. Likewise, at the hearing of his case on 2 April 2007 the applicant had again declared that he considered himself to be detained unlawfully and had kept trivialising his offences.

23. His personal circumstances could not lead to a different assessment either. His contacts outside prison had deteriorated as his relationship with his fiancée had ended. The applicant had subsequently insulted and threatened her.

24. Furthermore, the applicant’s age and his state of health did not necessitate the suspension on probation of his preventive detention. The Regional Court had regard, in this connection, to a report dated 21 February 2007 submitted by the Aachen Prison doctor. The latter had stated that the applicant suffered from prostate cancer, which was being stabilised by hormonal medication. He had had an artificial hip fitted in October 2006 without any complications. It had also been possible to treat his heart disease with medication. The likelihood of the seventy‑four‑year‑old applicant dying in the years to come was slightly increased because of his illnesses.

25. According to the Regional Court, it was clear from the Aachen Prison doctor’s report that the applicant’s illnesses were being treated appropriately. His state of health did not alter the prognosis as to his dangerousness. In the past, he had committed mainly non-violent offences against property. His most recent acts of fraud, in respect of which he had been convicted in 1992 and 1997, had caused substantial economic damage. Committing such offences, however, did not require particular physical fitness. Despite the applicant’s impaired state of health and his age, his continuing detention was proportionate because there was still a risk of his committing serious offences causing considerable damage.

2. The proceedings before the Cologne Court of Appeal

26. On 26 June 2007 the applicant, represented by counsel, lodged an appeal against the Regional Court’s decision. He claimed that in view of his poor state of health, he could no longer be considered dangerous and complained that he had not had the conditions of his detention relaxed in any way.

27. On 19 September 2007 the Cologne Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 14 June 2007.

28. Referring to the reasoning in its decision of 10 October 2006 (see paragraph 18 above), the Court of Appeal found that the applicant’s preventive detention was still necessary in view of his dangerousness (Article 67c § 1 and Article 66 § 1 of the Criminal Code – see paragraphs 47 and 45-46 below).

29. The court referred to a report dated 21 February 2006 by a medical expert, Sch., whom it had previously consulted. The latter had found that the applicant suffered from a personality disorder. This finding, which was still valid, was at the root of his previous offences and was the reason why he risked committing further offences if released.

30. The applicant’s failure to reflect on his offences had been confirmed by the governor of Aachen Prison. The latter had considered that the applicant’s personality, which was the cause for his committing offences, had not changed. As he had no family or friends outside prison, he could, if anything, be placed in a supervised residence (betreute Wohneinrichtung), but it could not be ascertained whether he was sufficiently ready to cooperate. Moreover, his social prospects in the event of his release had deteriorated as his relationship with his fiancée had ended.

31. Furthermore, the applicant’s age and his state of health did not call into question his continued dangerousness. There was still a risk of his committing serious acts of fraud, an offence which he was able to commit despite his illnesses.

32. The Court of Appeal noted that the negative prognosis as to the applicant’s future conduct could partly have been caused by misconduct on the part of the Aachen Prison management. Although it had found, in its decision of 10 October 2006, that the granting of measures relaxing the conditions of the applicant’s detention was indispensable in order to assess his personality and to encourage a change in his attitude, no such measures had been granted. The applicant’s request to that effect had been rejected with an inordinate delay. However, this did not warrant the suspension on probation of the applicant’s detention as it was in the first place his own attitude which was the reason for the negative prognosis. The prison authorities were now called upon to take reasonable measures to relax the conditions of the applicant’s detention so that his release into a supervised residence could become an option.

33. The Court of Appeal further found that the applicant’s continued preventive detention, which had lasted for seven years, was proportionate. The public interest in the detention of the applicant, who still risked committing serious property offences, continued to prevail over his own interest in personal liberty.

34. On 12 November 2007 the Cologne Court of Appeal dismissed the applicant’s objection to its decision of 19 September 2007.

3. The proceedings before the Federal Constitutional Court

35. On 7 October 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that his continued preventive detention since 26 January 2000 violated his right to liberty as guaranteed by the Basic Law and Article 5 § 1 of the Convention.

36. On 21 January 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2124/07) as it was ill-founded. The decisions of the courts responsible for the execution of sentences had not disregarded the applicant’s constitutional rights.

37. The Federal Constitutional Court referred to its well-established case-law to the effect that preventive detention as such pursuant to Article 66 § 1 of the Criminal Code was constitutional. In the present case, the courts responsible for the execution of sentences had found that there was a high risk that, if released, the applicant would commit acts of fraud. Because of this risk, the courts had rightly refused to set a date for the applicant’s release despite the prison authorities’ failure to relax the conditions of his detention. The court stressed, however, that the prior relaxation of conditions of detention was not indispensable for a prisoner’s release on probation, in particular if measures to that effect had wrongly been refused. Should the prison authorities persist in refusing such measures, it was for the applicant to seek their enforcement before the courts.

38. The applicant’s continuing preventive detention was also not yet disproportionate. The fact that the order for his preventive detention had been made as far back as 1972, but had not been implemented until 2000, did not warrant a different conclusion because the offences he had committed in the meantime proved his persisting dangerousness. Furthermore, according to the findings of the courts responsible for the execution of sentences, the applicant’s state of health was not so poor as to render his detention disproportionate.

C. Subsequent developments

39. On 12 June 2008 the Hamm Court of Appeal upheld a decision of the Aachen Regional Court dated 25 March 2008 in which the latter had found that the prison authorities’ refusal to grant the applicant’s request for leave under escort was unlawful. The Court of Appeal stated that the applicant was not likely to abuse the granting of leave under escort. There were no grounds to assume that a seventy-six-year-old prisoner who was severely disabled, suffered from a walking disability and had no contacts outside prison was likely to abscond alone or with the help of others. In so far as the prison authorities had submitted that the applicant’s preventive detention had been ordered in respect of an aggravated robbery and thus a crime involving violence, the Court of Appeal stressed that the order dated from 1972 and that currently, as confirmed by a medical expert in 2006, there remained only a risk that the applicant might commit acts of fraud.

40. Since September 2008 the applicant has regularly been granted leave under escort.

41. On 8 January 2010 the Aachen Regional Court declared that the applicant’s preventive detention would end on 25 January 2010, by which date he would have spent ten years in that form of detention (Article 67d § 3 of the Criminal Code – see paragraph 51 below). It found that there was no risk that the applicant would commit serious offences resulting in considerable psychological or physical harm to the victims if released. The courts had repeatedly considered that he might commit only non-violent property offences if released. The applicant was released, accordingly, on 25 January 2010 and has been living in a residential care home in Erkelenz since then.

II. RELEVANT DOMESTIC LAW AND PRACTICE

42. 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 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, 17 December 2009). The provisions relevant to the present case can be summarised as follows.

A. The ordering of preventive detention by the sentencing court

43. In accordance with the provisions on preventive detention since its incorporation into the Criminal Code, a sentencing court may, at the time of an offender’s conviction, order the offender’s preventive detention under certain circumstances in addition to a prison sentence if the offender has been shown to be dangerous to the public.

44. Pursuant to Article 42e of the Criminal Code, in its version in force before 1 April 1970, preventive detention was to be ordered if, at the time of conviction, the offender had been considered a dangerous habitual offender within the meaning of Article 20a of the Criminal Code and if preventive detention was necessary for guaranteeing public safety. Article 20a of the Criminal Code ordered an increase of the penalty notably if a person was sentenced for an intentional offence to a term of imprisonment, if that person had already been sentenced twice for an intentional offence to at least six months’ imprisonment in each case and if a comprehensive assessment of his offences led to the conclusion that he was a dangerous habitual offender.

45. Article 42e of the Criminal Code, in its version in force as of 1 April 1970, set stricter conditions for the preventive detention of an offender. The sentencing court ordered preventive detention in addition to the penalty, in particular, if someone was convicted of an intentional offence and sentenced to at least two years’ imprisonment and if the following further conditions were satisfied: firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator 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 perpetrator presented a danger to the general public (see Article 42e § 1).

46. Since 1 January 1975 the conditions for a preventive detention order have been laid down in Article 66 of the Criminal Code. That version of Article 66 § 1 of the Criminal Code corresponds to Article 42e § 1 of the Criminal Code in the version in force since 1 April 1970.

B. The order for execution of a preventive detention order

47. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special chamber of the Regional Court composed of three professional judges – see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person’s conduct (Führungsaufsicht) commences with suspension.

48. Article 67g of the Criminal Code concerns the revocation of the suspension on probation of a preventive detention order. Pursuant to paragraph 1, point (1), the court responsible for the execution of sentences revokes the suspension of a preventive detention order if the convicted person, during the period of supervision of conduct, commits an unlawful act which shows that the objective of the measure necessitates his preventive detention.

C. Judicial review and duration of preventive detention

49. 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 on probation. It is obliged to do so within fixed time-limits (Article 67e § 1). For persons in preventive detention, this time-limit is two years (Article 67e § 2). The court may shorten this time-limit, but may also set terms within the statutory limits for review before which an application for review is inadmissible (Article 67e § 3).

50. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article, in its version in force at the time of the domestic courts’ decisions at issue in the present case, provided that if there was no provision for a maximum duration or if the time-limit had not yet expired, the court should suspend on probation the further execution of the detention order as soon as it was to be expected that the person concerned would not commit any further unlawful acts on his or her release.

51. Article 67d § 3, in its version in force since 31 January 1998, provides that if a person has spent ten years in preventive detention, the court is to 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.

D. Recent case-law of the Federal Constitutional Court on preventive detention

52. 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 the complainants’ preventive detention (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 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.

53. 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.

54. 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. The provisions on the imposition and duration of preventive detention which did not concern the retrospective ordering or prolongation of preventive detention could only continue to be applied in the transitional period subject to a strict review of proportionality. As a general rule, proportionality was only observed where there was a danger of the person concerned committing serious violent crimes or sexual offences if released.

THE LAW

55. The applicant complained that his continuing preventive detention since 26 January 2000 violated his right to liberty as provided in Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows:

“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:

(a) the lawful detention of a person after conviction by a competent court; ...”

56. The Government contested that argument.

A. Scope of the case before the Court

57. The Court observes that the applicant complained about his continuing preventive detention “since 26 January 2000”. However, the proceedings at issue, in respect of which he lodged his application with the Court (in compliance with the six-month time-limit under Article 35 § 1 of the Convention), cover only his preventive detention as ordered by the Aachen Regional Court on 14 June 2007 and as confirmed on appeal. The present application before the Court therefore concerns only the applicant’s preventive detention as a result of these proceedings.

B. Admissibility

1. The parties’ submissions

58. In their observations on the admissibility and merits of the case dated 6 January 2009, submitted in accordance with Rule 54 § 2 (b) of the Rules of Court, the Government contended that the application was “admissible but unfounded”. In their further observations dated 14 June 2011 the Government subsequently objected that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. They argued that in its leading judgment of 4 May 2011 on preventive detention (see paragraphs 52-54 above), the Federal Constitutional Court had introduced a new domestic remedy for the review of the ongoing preventive detention of persons concerned by that judgment. For persons in preventive detention which had not been ordered or prolonged retrospectively, the Federal Constitutional Court had set stricter standards for their preventive detention to continue. The prolongation of preventive detention could be ordered only if there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. The applicant had been obliged to avail himself of that new domestic remedy.

59. The Government further took the view that the applicant could no longer claim to be the victim of a violation of his Convention rights. In its above-mentioned judgment, the Federal Constitutional Court had implemented the findings the Court had made in its judgments on preventive detention in Germany. The Convention violations found had thus been remedied in part by the Federal Constitutional Court in its transitional rules, and would be remedied as soon as possible as to the remaining part.

60. The applicant did not comment on the Government’s new submissions.

2. The Court’s assessment

(a) Exhaustion of domestic remedies

61. The Court reiterates that according to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its observations on the admissibility of the application submitted as provided in Rule 54 (compare also Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006‑II; Mooren v. Germany [GC], no. 11364/03, § 57, ECHR 2009‑...; and Medvedyev and Others v. France [GC], no. 3394/03, § 69, ECHR 2010‑...). It observes that the Government objected that the applicant had failed to exhaust domestic remedies only in their further observations in reply to the applicant’s observations, after having submitted in their initial observations on the admissibility of the application that the latter was admissible. Therefore, an issue arises as to whether the Government should be considered to have been prevented from raising that objection at this stage of the proceedings (compare also Stanev v. Bulgaria (dec.), no. 36760/06, § 114, 29 June 2010).

62. The Court considers, however, that it is not necessary in the present case to examine that question. According to its well-established case-law, under Article 35 § 1 of the Convention, recourse should be had to remedies which are available and sufficient to afford redress in respect of the breach of the Convention alleged (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV).

63. The Court notes that the present case concerns the applicant’s preventive detention as ordered on 14 June 2007 by the Aachen Regional Court and as confirmed by the Cologne Court of Appeal (19 September 2007) and by the Federal Constitutional Court (21 January 2008). The applicant was released on 25 January 2010 following a further judicial review of his preventive detention. The new domestic remedy introduced subsequently, on 4 May 2011, by the Federal Constitutional Court for the review of ongoing preventive detention is not, therefore, capable of affording redress to the applicant in relation to his preventive detention at issue in the present case and which had already come to an end on 25 January 2010. The applicant thus did not have to avail himself of that remedy for the purposes of Article 35 § 1 of the Convention.

64. Consequently, the Government’s objection of non-exhaustion of domestic remedies must be dismissed.

(b) Loss of victim status

65. The Court observes that the Government also objected that the applicant could no longer claim to be the victim of a violation of his Convention rights as the Federal Constitutional Court had remedied the alleged Convention violations by its judgment of 4 May 2011 and, in particular, by the transitional rules it contained. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” of a violation of a Convention right within the meaning of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports 1996‑III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).

66. The Court notes that in its leading judgment of 4 May 2011, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention adopted by the Court in its judgment in M. v. Germany (cited above) and the follow-up cases thereto. It welcomes the Federal Constitutional Court’s approach of interpreting the provisions of the Basic Law in the light also of the Convention and the Court’s case-law, which demonstrates that court’s continuing commitment to the protection of fundamental rights not only at national, but also at European level. It agrees with the Government that by its judgment, the Federal Constitutional Court implemented in the domestic legal order the Court’s findings in its above‑mentioned judgments on preventive detention in Germany. It gave clear guidelines both to the domestic criminal courts and to the legislature on the conclusions to be drawn in the future from the fact that numerous provisions of the Criminal Code on preventive detention were incompatible with the Basic Law, interpreted, inter alia, in the light of the Convention. Its judgment thus reflects and assumes the joint responsibility of the States Parties and the Court in securing the rights set forth in the Convention.

67. Having regard to the scope of the Federal Constitutional Court’s judgment, however, it appears doubtful whether that court intended to acknowledge a violation of Article 5 § 1 of the Convention in the circumstances at issue in the present application. In any event, the Court, referring to its findings above (see paragraph 63), considers that the Federal Constitutional Court’s judgment cannot be deemed to have afforded redress for the alleged breach of Article 5 § 1 resulting from the applicant’s preventive detention as ordered by the Aachen Regional Court on 14 June 2007 and as confirmed on appeal and by the Federal Constitutional Court itself on 21 January 2008.

68. The Government’s objection that the applicant has lost his victim status must therefore likewise be rejected.

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

C. Merits

1. The parties’ submissions

(a) The applicant

70. The applicant argued that preventive detention did not fall under any of the sub-paragraphs (a) to (f) of Article 5 § 1. In particular, he had not been lawfully detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a). There had been an insufficient causal connection between a conviction and his detention because his deprivation of liberty had been exclusively preventive and thus not linked to a conviction. He further submitted that the preventive detention order made against him in 1972 following his conviction for armed robbery had not been intended to prevent him from committing further acts of fraud.

71. Moreover, in the applicant’s submission, preventive detention was not “lawful” as the criterion of a person’s “dangerousness” owing to a “propensity to commit serious offences” was too vague. He further stressed that he had been in a very poor state of health which had necessitated repeated treatment in hospital. He had been disabled at a rate of 80% as a result of, inter alia, his severe walking disability. He had also suffered from prostate cancer and kidney problems, had been in serious pain and was therefore mortally ill. He had cooperated with the investigation authorities. Therefore, he could no longer be considered dangerous to the public.

(b) The Government

72. The Government took the view that the applicant’s preventive detention in the present case had complied with Article 5 § 1 of the Convention. It was justified under sub-paragraph (a) of Article 5 § 1 as “detention of a person after conviction by a competent court”. There had been a sufficient causal connection between the order for the applicant’s preventive detention by the sentencing Cologne Regional Court in 1972 and his deprivation of liberty after 26 January 2000. The repeated suspensions of the execution of the preventive detention order by the Krefeld Regional Court on 17 December 1980 and on 2 March 1994 (see paragraphs 11 and 14 above) had not affected that causal connection as those suspensions had had to be revoked following the applicant’s fresh offences (see paragraphs 12 and 15 above).

73. The Government further argued that the causal connection between the applicant’s conviction in 1972, which had included an order for his preventive detention, and the order’s execution in 2000 had likewise not been broken by the fact that twenty-eight years had elapsed in the meantime. Referring to the Court’s judgment in Eriksen v. Norway (27 May 1997, § 78, Reports 1997‑III), they noted that such a causal link could eventually be broken where the prolongation of a person’s preventive detention no longer had any connection with the objectives of the initial decision or was based on an assessment that was unreasonable in terms of those objectives. However, the fact that the applicant had reoffended after the preventive detention order had been suspended and probation granted had demonstrated that the initial assessment that he was dangerous to the public had been correct.

74. Furthermore, in the Government’s submission, the applicant’s preventive detention had been “lawful” and “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1. The preventive detention order could lawfully be revoked under Article 67g of the Criminal Code.

75. Moreover, the Government took the view that the risk that the applicant might commit serious property offences justified the execution of an order for his preventive detention under the Criminal Code. The applicant had committed increasingly serious property offences before his preventive detention had been ordered in view of his conviction on seven counts of aggravated bank robbery, committed with firearms. As found by the domestic courts in the proceedings at issue, only non‑violent property offences were to be expected from the applicant in the future, having regard to his age and current state of health. However, victims could also be seriously harmed physically or mentally or be caused serious economic damage by such property offences, as demonstrated by the frauds committed by the applicant in 1996. Only such serious property offences justified the making and execution of an order for the applicant’s preventive detention for a maximum of ten years (Article 67d § 3 of the Criminal Code – see paragraph 51 above).

76. The domestic courts had carefully weighed the applicant’s interest in his personal liberty against the public interest in security. Having regard to the applicant’s previous offences and his dangerousness, his continuing preventive detention was still proportionate despite his state of health and his age. His state of health was normal for his age. He currently suffered from renal insufficiency, while the prostate carcinoma he had been diagnosed with in 2005 did not necessitate any treatment. He was therefore not seriously ill.

2. The Court’s assessment

(a) Recapitulation of the relevant principles

(i) Grounds for deprivation of liberty

77. The Court reiterates the fundamental principles laid down in its case‑law on Article 5 § 1 of the Convention, which have been summarised in relation to applications concerning preventive detention, in particular in its judgment of 17 December 2009 in the case of M. v. Germany (cited above):

“86. Article 5 § 1 sub-paragraphs (a) to (f) contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Guzzardi v. Italy, 6 November 1980, § 96, Series A no. 39; Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000‑III; and Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008‑...). ...

87. For the purposes of sub-paragraph (a) of Article 5 § 1, the word ‘conviction’, having regard to the French text (‘condamnation’), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi, cited above, § 100), and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50).

88. Furthermore, the word ‘after’ in sub-paragraph (a) does not simply mean that the ‘detention’ must follow the ‘conviction’ in point of time: in addition, the ‘detention’ must result from, follow and depend upon or occur by virtue of the ‘conviction’ (see Van Droogenbroeck, cited above, § 35). In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114; Stafford v. the United Kingdom [GC], no. 46295/99, § 64, ECHR 2002‑IV; Waite v. the United Kingdom, no. 53236/99, § 65, 10 December 2002; and Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008‑...). However, with the passage of time, the link between the initial conviction and a further deprivation of liberty gradually becomes less strong (compare Van Droogenbroeck, cited above, § 40, and Eriksen, cited above, § 78). The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the initial decision (by a sentencing court) or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (compare Van Droogenbroeck, cited above, § 40; Eriksen, cited above, § 78; and Weeks, cited above, § 49).”

78. In taking their decision not to release or to redetain a person and in assessing the sufficiency of the grounds on which that decision was based, the national authorities have a certain discretion since they are better placed than the international judge to evaluate the evidence in a particular case (see Weeks, cited above, § 50 with further references).

79. The Court has had to determine whether there was a sufficient causal connection between an initial conviction and a further deprivation of liberty in the following cases in particular. In the case of Weeks (cited above, §§ 42-51), the applicant, then aged seventeen, was sentenced to life imprisonment in 1966 for armed robbery as the sentencing court wanted to subject him to a security measure in the interests of public safety, having regard to his dangerousness. He was released in 1976, but recalled to prison in 1977 as a result of, inter alia, a series of incidents involving minor violence whilst being drunk and the use of an air pistol. The Court found that the applicant’s redetention could not be regarded as arbitrary or unreasonable in terms of the objectives of the sentence imposed and thus complied with Article 5 § 1 (a).

80. In the case of Stafford (cited above, §§ 81-83), the applicant had been given a mandatory life sentence for murder in 1967, the punishment element of which he had served in 1979. Having served a sentence for fraud (conviction in 1994) until 1997, the applicant continued to be detained under the mandatory life sentence imposed for the murder because there was a risk that he might commit further non-violent offences. The Court found that there was no sufficient causal connection, as required by sub‑paragraph (a) of Article 5 § 1, between the applicant’s original sentence for murder and his detention on the basis of the possible commission of other non-violent offences some thirty years after that conviction.

81. In the case of Waite (cited above, §§ 64-69), the applicant was sentenced to detention at Her Majesty’s pleasure for murder, committed in 1981 against a background of substance abuse. Having been released in 1994 on life licence, he was recalled to prison in 1997 following, in particular, his arrest for drug possession and his admission that his drugs habit was beyond control. The Court accepted that there was a sufficient causal connection between the original conviction for murder and the recall to prison for the purposes of Article 5 § 1 (a).

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

82. Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Erkalo v. the Netherlands, 2 September 1998, § 52, Reports 1998‑VI; Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000‑III; and Saadi, cited above, § 67).

83. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp, cited above, §§ 37, 45; Erkalo, cited above, §§ 52, 56; Saadi, cited above, § 67; and Mooren v. Germany [GC], no. 11364/03, § 72, 9 July 2009).

(b) Application of these principles to the present case

(i) Grounds for deprivation of liberty

84. The Court will determine, in the light of the foregoing principles, whether the applicant, during the preventive detention at issue, was deprived of his liberty in accordance with one of the sub-paragraphs (a) to (f) of Article 5 § 1.

85. The detention at issue was justified under sub-paragraph (a) of Article 5 § 1 if it occurred “after conviction”, in other words if there was a sufficient causal connection between the applicant’s criminal conviction by the sentencing court and his deprivation of liberty in preventive detention since June 2007. The Court notes that the applicant was convicted, for the purposes of Article 5 § 1 (a), by the Cologne Regional Court in June 1972. That court found him guilty, in particular, on seven counts of joint aggravated (armed) bank robbery and ordered his preventive detention in addition to a prison sentence (see paragraphs 8-10 above).

86. The Court notes the applicant’s argument that there was an insufficient causal connection between a conviction and his detention because his deprivation of liberty was exclusively preventive. However, the Court would refer, in this connection, to its findings in its recent judgment of 17 December 2009 in the case of M. v. Germany (cited above). In that judgment, it found that preventive detention ordered by a sentencing court under the German Criminal Code was covered by sub-paragraph (a) of Article 5 § 1 as having occurred “after conviction” in so far as it had not been extended beyond the statutory maximum period applicable at the time of the applicant’s offence and conviction (ibid., §§ 96 and 97-105; see also Grosskopf v. Germany, no. 24478/03, §§ 46-47, 21 October 2010).

87. The Court sees no reason to depart from its findings in the M. v. Germany judgment (cited above). It notes that the applicant in the present case was not detained, at the relevant time, for a period beyond the statutory maximum period applicable at the time of his offence and conviction. It therefore considers that the preventive detention of the applicant under the Criminal Code could, in principle, have been based on his “conviction”, for the purposes of Article 5 § 1 (a), by the Cologne Regional Court in June 1972.

88. It remains to be determined whether the applicant’s preventive detention during the period at issue occurred “after” conviction – that is, whether there remained a sufficient causal connection between his conviction and the deprivation of liberty at issue. The Court notes at the outset that the causal connection between the applicant’s conviction and his preventive detention was not broken because of the initial provisional suspensions of the preventive detention order on 17 December 1980 and on 2 March 1994 (see paragraphs 11 and 14 above), as those suspensions had been revoked on 26 October 1984 and on 20 December 1999 respectively (see paragraphs 12 and 15 above).

89. The Court further has to determine whether the requisite causal link might have been broken because the courts’ decisions not to release the applicant were based on grounds which were inconsistent with the objectives of the decision by the sentencing court when ordering preventive detention or based on an assessment that was unreasonable in terms of those objectives (see paragraph 77 above).

90. The Court observes, first, that the sentencing Cologne Regional Court ordered the applicant’s preventive detention in 1972 in view of his conviction for seven bank robberies, committed jointly with others with the help of guns. In the proceedings at issue, the courts responsible for the execution of sentences ordered, in 2007 and 2008, the further execution of the preventive detention order made in 1972 because they considered that it was still likely that the applicant, who had not changed his attitude, would commit serious non-violent property offences such as fraud if released (see paragraphs 25, 31, 33 and 37 above).

91. Having regard to the grounds given for the further execution of the applicant’s preventive detention, the Court observes that it was uncontested that the applicant, in view of his age and his state of health, was liable to commit only non-violent property offences such as fraud (see paragraphs 25, 31 and 37 above). The Court considers that there is a marked difference between such offences and violent offences such as armed robberies, following which the applicant’s preventive detention had initially been ordered by the sentencing court.

92. However, in determining whether the grounds given by the courts in the proceedings at issue were consistent with the objectives of the decision by the sentencing court when ordering preventive detention, the Court must not only have regard to the offences in relation to which the preventive detention order was imposed. Having regard to its previous case-law on the issue (see, in particular, paragraphs 79-81 above), it must also take into account the reasons given by the sentencing court for imposing the sanction at issue – that is, preventive detention for the offences committed.

93. The Court notes in this connection that the sentencing Cologne Regional Court found that since the age of twenty, the applicant had committed different types of increasingly serious property offences, including fraud, embezzlement, theft and burglary – that is, non-violent offences. It was decisive for the Cologne Regional Court in making a preventive detention order that the applicant financed his costly lifestyle through crime and had caused substantial material damage by his acts (see paragraph 10 above). The seriousness of the applicant’s offences, according to the Regional Court’s findings, did not therefore stem from the fact that he had committed his most recent offences with the use of force, but from the considerable damage caused to the property of others.

94. Having regard to this reasoning, the Court is therefore satisfied that the grounds given by the courts responsible for the execution of sentences for not releasing the applicant – as he risked committing serious acts of fraud – were consistent with the objectives of the sentencing court’s judgment, namely to prevent him from committing further serious (violent or non-violent) property offences.

95. In determining whether the decision to continue the execution of the preventive detention order was unreasonable in terms of that objective, the Court observes that more than thirty-five years passed between the order for the applicant’s preventive detention and its continued execution. It is clear that with such a long passage of time alone, the link between the initial conviction and a deprivation of liberty became less strong. However, that lapse of time does not in itself render the applicant’s preventive detention unreasonable.

96. The Court notes in that connection that the applicant did not only serve a long prison sentence for joint aggravated robbery imposed by the Cologne Regional Court’s 1972 judgment. The execution of the order for his preventive detention had in fact been suspended and probation had been granted twice, in 1980 and 1994. Those suspensions, however, had to be revoked in 1984 and 1999 respectively following the applicant’s fresh convictions, in particular, for fraud in 1997 (see paragraphs 11-15 above). The long lapse of time between the order for the applicant’s preventive detention and its execution therefore resulted from the fact that the applicant served several prison sentences imposed for further offences committed afterwards and had proven unable to seize the opportunities for probation offered to him.

97. The Court further notes that at the time the courts ordered the continued execution of the preventive detention order, the applicant was already of an advanced age (seventy-four). He was found to be suffering from prostate cancer and heart disease, both being stabilised by medication, from a kidney disorder and a severe walking disability. In view of these factors, the question arises whether the domestic courts could reasonably consider the applicant still to pose a threat to the public.

98. The Court observes, however, that the domestic courts thoroughly examined that question, having regard to the applicant’s state of health and age. In particular, they consulted the prison doctor on the applicant’s condition. The doctor confirmed the illnesses the applicant had claimed to be suffering from, but contested that the applicant was mortally ill (see paragraph 24 above). In coming to their conclusion that the applicant could, at the relevant time, not yet be considered physically incapable of committing further acts of fraud, the domestic courts took into account, in particular, the fact that his most recent acts of fraud had not necessitated particular physical fitness (see paragraphs 25, 31 and 38 above). The applicant had indeed committed his last offence in 1996 (see paragraph 15 above), when he was already of a relatively advanced age (sixty-four).

99. Having regard to the foregoing and noting also that the applicant has been released in the meantime, the Court is satisfied that the decision to continue the execution of the order for the applicant’s preventive detention could still be considered reasonable in terms of its objective at the relevant time.

100. Therefore, there remained a sufficient causal connection between the applicant’s criminal conviction in 1972 and his continued preventive detention for the purposes of sub-paragraph (a) of Article 5 § 1.

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

101. The Court must further determine whether the applicant’s preventive detention was “lawful” and “in accordance with a procedure prescribed by law” as required by Article 5 § 1.

102. The Court is satisfied that the domestic courts ordered the applicant’s continued preventive detention in compliance with the procedural and substantive rules of national law as such. It takes note, in this connection, of the reversal of the Federal Constitutional Court’s position concerning preventive detention in its leading judgment of 4 May 2011 (see paragraphs 52-54 above). In the judgment in question the Federal Constitutional Court considered, inter alia, that Article 66 of the Criminal Code, in its version in force since 27 December 2003, did not comply with the right to liberty of the persons concerned. The Court notes, however, that the applicant’s preventive detention at issue in the present case was ordered and executed on the basis of a previous version of Article 66 of the Criminal Code (Article 42e of the Criminal Code and Article 20a of the Criminal Code, in their versions in force before 1 April 1970, and Article 42e of the Criminal Code, in its version in force after 1 April 1970 – see paragraphs 10 and 43-45 above).

103. In any event, Article 66 of the Criminal Code in its version in force since 27 December 2003 was not declared void with retrospective effect, but remained applicable and thus formed a valid legal basis under domestic law, in particular for the time preceding the Federal Constitutional Court’s judgment. Therefore, the lawfulness of the applicant’s preventive detention for the purposes of Article 5 § 1 is not called into question on this ground.

104. Detention must, however, also be in conformity with the purpose of Article 5 § 1, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see paragraph 83 above). The Court notes in this connection that the continuation of the applicant’s preventive detention was ordered in the proceedings at issue because his attitude towards his property offences had not changed and he was therefore still dangerous to the public. The domestic courts noted, however, that this negative prognosis could partly have been caused by the misconduct of the Aachen Prison management. The latter had failed to grant the applicant measures relaxing the conditions of his detention, which would have been important in order to assess his personality and to encourage a change in his attitude (see paragraph 32 above).

105. The Court considers that an issue arises as to whether detention is lawful – including whether no element of arbitrariness is present – in cases in which a person is detained only because he or she is considered dangerous to the public, but where that person, at the same time, is deprived of the necessary opportunity to demonstrate that he or she has changed his or her attitude and no longer poses a threat to the public.

106. The Court notes, however, that the domestic courts did not base their assessment that there was still a high risk that the applicant would commit serious acts of fraud if released on his failure to demonstrate a change in his attitude during relaxations in the conditions of his detention (see, in particular, paragraphs 32 and 37 above). The domestic courts noted, in particular, that there had not been any positive development at all on the applicant’s part indicating that his dangerousness had diminished (see, in particular, paragraphs 22-23, 29-30 and 37 above). Moreover, the Federal Constitutional Court stressed that the prior relaxation of the conditions of the applicant’s detention was not indispensable for the suspension on probation of the order for his preventive detention, in particular if such relaxations had been refused unlawfully (see paragraph 37 above). The Court further takes note of the fact that the applicant was subsequently granted leave under escort on a regular basis on the domestic courts’ orders (see paragraphs 39-40 above).

107. Having regard to the foregoing, the Court is satisfied that the applicant’s preventive detention in the period at issue in the present case was “lawful” for the purposes of Article 5 § 1.

108. There has accordingly been no violation of Article 5 § 1 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

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

Done in English, and notified in writing on 19 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekDean Spielmann
RegistrarPresident

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