CASE OF W.P. v. GERMANY

FIFTH SECTION

CASE OF W.P. v. GERMANY

(Application no. 55594/13)

JUDGMENT

STRASBOURG

6 October 2016

FINAL

06/01/2017

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

In the case of W.P. v. Germany,

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

Ganna Yudkivska, President,
Angelika Nußberger,
Khanlar Hajiyev,
Erik Møse,
Faris Vehabović,
Síofra O’Leary,
Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 13 September 2016,

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

PROCEDURE

1. The case originated in an application (no. 55594/13) 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 W.P. (“the applicant”), on 26 July 2013. On 23 August 2016 the Vice-President of the Section acceded to the applicant’s request of 21 July 2016 not to have his identity disclosed (Rule 47 § 4 of the Rules of Court).

2. The applicant was represented by Ms M. Koch, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant alleged, in particular, that the retrospective extension of his preventive detention, on the basis of insufficient expert advice, executed partly in Lübeck Prison and partly in a Centre for persons in preventive detention in Hamburg-Fuhlsbüttel Prison, had violated Article 5 § 1 and Article 7 § 1 of the Convention.

4. On 6 January 2014 the complaints concerning the retrospective extension of the applicant’s preventive detention, based on allegedly insufficient medical expertise, were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1944. At the time of lodging his application, he was detained in a Centre for persons in preventive detention in Hamburg-Fuhlsbüttel Prison. He now lives in Pinneberg.

A. The preventive detention order and execution thereof

6. On 28 March 1994 the Lübeck Regional Court convicted the applicant of rape and sexual assault. It sentenced him to eight years’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see paragraph 23 below). The court found that in August 1986 the applicant, having acted with full criminal responsibility, had raped an eighteen-year-old woman whom he had lured into a forest. It noted that between 6 October 1970 and 28 May 1991 the applicant had been convicted of five counts of rape of young women, committed only a couple of months after his release from prison. Therefore, and having consulted a medical expert, the court found that the applicant had a propensity to commit serious sexual offences and was dangerous to the public.

7. On 10 January 2002 the applicant, who had fully served his prison sentence, was placed for the first time in preventive detention, initially in Lübeck Prison. He had thus served ten years in preventive detention by 9 January 2012.

B. The proceedings at issue

1. The decision of the Lübeck Regional Court

8. On 2 October 2012 the Lübeck Regional Court, having heard the applicant in person as well as his lawyer, by whom he was represented throughout the proceedings, ordered the applicant’s preventive detention to continue.

9. The Regional Court considered that the requirements set up by Article 67d of the Criminal Code, read in the light of the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraph 23 below), in order for retrospectively-extended preventive detention to continue, were met. It found that the applicant suffered from a mental disorder, for the purposes of section 1 (1) of the Therapy Detention Act (see paragraph 23 below). He had a personality and conduct disorder as described by the relevant tool for the classification of diseases, the International Statistical Classification of Diseases and Related Health Problems in its current version (ICD-10). The Regional Court endorsed the findings which psychiatric expert B. had made in his report dated 4 June 2010 on the possibility of granting relaxation of the conditions of the applicant’s detention (Vollzugslockerungen) after having examined the applicant in person. The expert had found that the applicant suffered from a profound and serious personality disorder with narcissistic elements and a lack of self-esteem. His disorder was characterised by denying and idealising conduct, total denial of his own aggression and minimisation of his criminal acts.

10. Furthermore, in the Regional Court’s view, there was still a high risk that the applicant, owing to the said specific circumstances relating to his person and his conduct, would commit the most serious sexual offences if released. It had repeatedly been confirmed, in particular, by expert B. and by the Hamburg-Eppendorf University hospital, that the applicant needed comprehensive therapy for sexual offenders in a social therapeutic institution. However, the applicant, who had not completed therapy, had confirmed at the hearing that he refused transfer to the prison’s social therapeutic department. Furthermore, the applicant had already raped six women and had repeatedly reoffended shortly after his release.

2. The decision of the Schleswig-Holstein Court of Appeal

11. On 24 October 2012 the applicant lodged an appeal against the Regional Court’s decision with the Schleswig-Holstein Court of Appeal. He argued that his continued preventive detention beyond the former ten‑year time-limit breached the Basic Law, as interpreted by the Federal Constitutional Court, and the Convention. He complained, in particular, that the Regional Court had failed to obtain a new report by a different expert and had relied on the report of expert B. dating back two-and-a-half years, on relaxation of the conditions of the applicant’s detention, which had not addressed the issues relevant to his continued detention.

12. On 21 November 2012 the Schleswig-Holstein Court of Appeal dismissed the applicant’s appeal. As regards the finding that the applicant suffered from a mental disorder for the purposes of section 1 (1) of the Therapy Detention Act, the Court of Appeal stressed that the decision to extend the applicant’s preventive detention had not only been based on the written report submitted by expert B. in 2010. The expert had been heard in person by the Regional Court in different proceedings (concerning the applicant’s transfer to a psychiatric hospital, see paragraph 19 below) on 6 June 2012 and had updated and confirmed his previous findings. His assessment had further been shared by the Hamburg-Eppendorf University hospital in its statement dated 27 March 2012 on the therapeutic progress made by the applicant. The hospital, having regard to the voluminous case‑file, had confirmed expert B.’s conclusion that the applicant, who had refused any therapeutic treatment for years, suffered from a profound personality disorder as defined by the ICD-10, namely a narcissistic personality disorder with emotionally unstable and sadistic elements.

13. The Court of Appeal, having regard to the applicant’s previous offences and the fact that therapy to date had not yielded success, further agreed that there was still a high risk that the applicant would commit the most serious sexual offences if released. As had been confirmed by the applicant in the hearing before the Regional Court, his personal and therapeutic situation had not changed since the Court of Appeal’s last decision of 18 November 2011 in which, in periodic review proceedings, it had ordered the extension of the applicant’s preventive detention.

3. The decision of the Federal Constitutional Court

14. On 17 December 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the extension of his preventive detention beyond the former statutory ten-year time-limit had violated his right to liberty and the protection of legitimate expectations in a State governed by the rule of law.

15. The applicant claimed that the restrictive criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011 for a continuation of his retrospectively extended preventive detention had not been met. In particular, the order for the continuation of his preventive detention had been based on an old expert report on relaxation of the conditions of his detention, which had not addressed the criteria set up by the Federal Constitutional Court. In these circumstances, the courts had not had at their disposal a sufficient basis for concluding that he had a mental disorder for the purposes of the Therapy Detention Act. In any event, he did not suffer from a mental illness as required by Article 5 § 1 (e) of the Convention.

16. On 20 March 2013 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2886/12).

C. The conditions of the applicant’s detention during the execution of the preventive detention order

17. From 10 January 2002 until 22 May 2013 the preventive detention order against the applicant was executed in Lübeck Prison, where the applicant was detained together with persons serving their prison sentence. For as long as the applicant’s detention was executed at that prison during the time covered by the proceedings at issue, the applicant, having refused repeated offers of treatment, in particular transfer to the social‑therapeutic institution of Lübeck Prison, apparently did not undergo any therapy for sexual offenders. His occasional conversations with the prison psychologists had been discontinued in May 2012.

18. On 22 May 2013 the applicant was transferred to the newly-set-up Centre for persons in preventive detention in Hamburg-Fuhlsbüttel Prison. That Centre was built in order to comply with the constitutional requirement, as defined by the Federal Constitutional Court in its judgment of 4 May 2011, to differentiate between preventive detention and imprisonment. Soon after his transfer to that Centre the applicant started comprehensive therapy, including one-to-one and group therapy sessions. He was granted leave without escort from March 2014 onwards.

D. Further developments

19. Prior to the proceedings at issue, on 14 June 2012 the Lübeck Regional Court dismissed the prosecution’s request to transfer the applicant to a psychiatric hospital for the further execution of his preventive detention under Article 67a § 2 of the Criminal Code (see paragraph 23 below). Having heard psychiatric expert B., the Regional Court found that the applicant’s reintegration into society could not better be supported in a psychiatric hospital. It was necessary for the applicant to undergo therapy for sex offenders in a social-therapeutic department in prison or possibly with an external social therapist. Transferring the applicant, who was not willing to undergo therapy, to a psychiatric hospital against his will would not yield any success.

20. On 24 October 2013, in new review proceedings, the Hamburg Regional Court ordered the applicant’s preventive detention to continue. It had regard to the report dated 28 August 2013, submitted by psychiatric expert L., on the applicant’s mental condition and the danger he represented. Having examined the applicant in person, L. had considered that the applicant was an accentuated personality, possibly with sadistic personality traits, and lacked self-esteem. He found, however, that the applicant could not be diagnosed with a mental disorder as defined in the ICD-10; in particular, he showed no signs of sexual sadism. There was a medium risk that the applicant would again commit serious sexual offences if released.

21. On 29 August 2014 the Hamburg Regional Court, having regard to an additional report drawn up by expert L., declared the applicant’s preventive detention terminated and ordered his release on 1 October 2014. It found that the applicant neither suffered from a mental disorder nor was there a high likelihood that he would commit the most serious crimes of violence or sexual offences if released.

II. RELEVANT DOMESTIC LAW AND PRACTICE

22. 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 issuing, review and practical implementation of preventive detention orders, is contained in the Court’s judgments in the cases of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009), Glien v. Germany (no. 7345/12, §§ 32-52, 28 November 2013) and Bergmann v. Germany (no. 23279/14, §§ 42-76, 7 January 2016).

23. The provisions referred to in the present case, in their versions in force at the relevant time, can be found as follows: the provision on the order of preventive detention by the sentencing court (Article 66 § 1 of the Criminal Code) is set out in the case of M. v. Germany (cited above, §§ 49‑50). The relevant provisions on judicial review and duration of preventive detention (Article 67e §§ 1 and 2 of the Criminal Code, Article 67d §§ 1 and 3 of the Criminal Code, in the version in force prior to 31 January 1998 and Article 67d § 3 of the Criminal Code in its amended version) are contained in the case of Glien (cited above, §§ 35-37). The rules on the detention of mentally-ill persons (Article 63 of the Criminal Code and section 1 of the Therapy Detention Act) are spelled out in the case of Bergmann (cited above, §§ 63-64). The relevant provision on the transfer for enforcement of a different measure of correction and prevention (Article 67a of the Criminal Code) is laid down in the case of Glien (cited above, § 41). Finally, a summary of the Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 can be found in the case of Bergmann (cited above, §§ 66-72).

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 5 § 1 AND 7 § 1 OF THE CONVENTION ON ACCOUNT OF THE RETROSPECTIVE EXTENSION OF THE APPLICANT’S PREVENTIVE DETENTION FROM 2 OCTOBER 2012 UNTIL 22 MAY 2013

24. The applicant complained that his continuing preventive detention beyond the former ten-year maximum duration – including the period between 2 October 2012 and 22 May 2013 during which that detention was executed in Lübeck Prison – had breached his right to liberty as provided in Article 5 § 1 of the Convention, as well as the prohibition of retrospective punishment under Article 7 § 1 of the Convention.

25. After the failure of attempts to reach a friendly settlement, by a letter of 5 May 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

26. The Government declared in that context that they had taken note of the Court’s judgment in the case of Glien (cited above). In the light of the Court’s findings in that judgment, the Government accepted that until his transfer to Hamburg Prison in May 2013 the applicant, who had been detained in Lübeck Prison together with prisoners serving their sentence until then, had not been detained in a suitable institution for mental health patients. Therefore, his detention had not complied with Article 5 of the Convention. Furthermore, in view of these conditions of detention, the applicant’s preventive detention during that period had to be classified as a penalty and had therefore been in breach of Article 7 of the Convention.

27. The declaration provided as follows:

“1. The friendly settlement proposed by the Court has failed because the Applicant did not submit a declaration thereon.

2. By way of a unilateral declaration, the Federal Government recognises that the Applicant’s rights arising from Articles 5 and 7 of the Convention have been violated, because the Applicant was kept in preventive detention beyond 9 January 2012 and thus for more than ten years. The decisive factor is that – taking into account the particular circumstances of his detention – the institution in which he was detained at the beginning of the period in question was not a “suitable institution” for persons held in preventive detention.

3. Due to the particular circumstances of this individual case, the Federal Government is prepared to pay compensation in the amount of €11,000 to the Applicant, if the Court, on condition of payment of the amount, strikes the Application out of the list of cases pursuant to Article 37 (1) c) of the Convention. This would satisfy any and all claims, costs and expenses on the part of the Applicant against the Federal Republic of Germany (i.e. against the Federation and/or the Länder) due to placement in preventive detention in violation of the Convention.

The amount shall be payable within three months of the Court’s decision to strike the case out of its list becoming final.”

28. By a letter of 4 June 2014, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. He argued that his application did not only concern a breach of his Convention rights as a result of his conditions of detention. There had notably been, in addition, a breach of those rights by the domestic courts’ failure to obtain necessary expert advice on his mental condition and the danger he represented, which would have made the extension of his preventive detention beyond the ten‑year-point as such unnecessary.

29. The Court observes at the outset that in the present application, the applicant contested his continuing preventive detention as ordered by the Lübeck Regional Court on 2 October 2012. The detention resulting from that decision lasted until 24 October 2013 when the Hamburg Regional Court, in fresh proceedings, again ordered the continuation of the applicant’s preventive detention (see paragraph 20 above). It is further clear from the Government’s declaration, and their explanations given in that context, that the unilateral declaration only concerns the period prior to the applicant’s transfer to Hamburg Prison on 22 May 2013. Furthermore, the declaration only relates to breaches of the Convention resulting from the failure to provide the applicant with suitable conditions of detention in view of his status as a mental health patient in preventive detention.

30. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

31. It also reiterates that in certain circumstances, it may strike out an application or a part thereof under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government, even if the applicant wishes the examination of the case to be continued.

32. To this end, the Court has examined the declaration in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).

33. The Court has established, in a number of cases brought against Germany, its practice concerning complaints about the violation of Articles 5 § 1 and 7 § 1 of the Convention by retrospective extension of the preventive detention of the persons concerned beyond the former ten-year time-limit (see M. v. Germany, cited above, §§ 79 ss.; and O.H. v. Germany, no. 4646/08, §§ 56 ss., 24 November 2011 with further references). This included cases in which the preventive detention of the applicants concerned was extended following the Federal Constitutional Court’s leading judgment of 4 May 2011, but not yet executed in the newly-built centres for persons in preventive detention and thus not in institutions suitable for mental health patients for the purposes of Article 5 § 1 (e) and not in conditions distinguishing that measure from a “penalty” for the purposes of Article 7 (see, in particular, Glien, cited above, §§ 53 ss.).

34. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).

35. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

36. The Court further considers that in the event of failure to settle within the three months’ period specified in the Government’s unilateral declaration, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

37. In view of the above, it is appropriate to strike this part of the application out of the list.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION ON ACCOUNT OF THE EXTENSION OF THE APPLICANT’S PREVENTIVE DETENTION ON THE BASIS OF ALLEGEDLY INSUFFICIENT EXPERT ADVICE AND ON ACCOUNT OF THE RETROSPECTIVE EXTENSION OF THE APPLICANT’S PREVENTIVE DETENTION FROM 22 MAY 2013 UNTIL 24 OCTOBER 2013

38. The applicant complained that the proceedings for review of his preventive detention and the extension thereof were unfair because the continuation of his preventive detention was ordered on the basis of insufficient expert advice. He relied on Article 6 § 1 of the Convention. The Court, having regard to its case-law (see, in particular, H.W. v. Germany, no. 17167/11, §§ 92-93, 19 September 2013), considers that this complaint falls to be examined under Article 5 § 1 of the Convention.

39. The applicant further argued that his continuing preventive detention beyond the former ten-year maximum duration, in so far as it had been executed in Hamburg-Fuhlsbüttel Prison between 22 May 2013 and 24 October 2013, had equally 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:

(...)

(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; (...)”

40. The Government contested that argument.

A. Admissibility

41. The Court notes that this part of the application – which, as shown above, is not covered by the Government’s unilateral declaration – 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.

B. Merits

1. The parties’ submissions

(a) The applicant

42. The applicant claimed that his preventive detention throughout the period at issue had failed to comply with Article 5 of the Convention because that detention had been ordered on the basis of an expert report of 4 June 2010 which thus dated back some two-and-a-half years. Moreover, that report had only concerned the question of whether relaxation of his conditions of detention could be granted. It had therefore covered an issue which was different from the question which the domestic courts had to address in the proceedings at issue, namely the question of the likelihood of his committing the most serious crimes of violence or sexual offences if released, as a result of a mental disorder. The expert report thus did not address the new, stricter criteria set out by the Federal Constitutional Court in its leading judgment of 4 May 2011 for the continuation of retrospectively-extended preventive detention, in particular the question of whether he suffered from a mental disorder, which he contested.

43. The applicant submitted that, unlike previous experts, expert B. had concluded that there was a high risk that he would reoffend, although there had not been any fundamental changes in his situation. He further stressed that a subsequent expert report drawn up in September 2013 by expert L. had considered his release possible after a preparatory period of approximately one year. Had the Lübeck Regional Court ordered a fresh expert report in the proceedings at issue, he would have been released much earlier.

44. The applicant further argued that his preventive detention in Hamburg Prison, just as that in Lübeck Prison, equally violated Article 5 of the Convention. He conceded that the conditions of detention in Hamburg Prison had been acceptable as he had been placed in a separate institution for persons in preventive detention and received comprehensive therapy. He contested, however, that his preventive detention was justified under sub‑paragraph (e) of Article 5 § 1 as that of a person “of unsound mind”. Even assuming that he suffered from a personality disorder, as wrongly diagnosed by expert B., he did not suffer from a mental disorder for the purposes of the Therapy Detention Act. He was even less a person “of unsound mind” suffering from a mental illness for the purposes of Article 5 § 1 (e).

(b) The Government

45. The Government took the view that the proceedings for review of the applicant’s preventive detention as such had complied with Article 5 of the Convention. In particular, the courts had correctly applied the requirements set up by the Federal Constitutional Court in its judgment of 4 May 2011 for the applicant’s preventive detention to continue.

46. Furthermore, in the Government’s view, the applicant had been detained in a suitable institution for the purposes of Article 5 since his transfer to a newly-built department for persons in preventive detention in Hamburg-Fuhlsbüttel Prison.

2. The Court’s assessment

(a) Recapitulation of the relevant principles

47. For a summary of the principles established, as relevant for the case, in respect of Article 5 § 1 (e), the Court refers to the recapitulation of those principles in its judgment in the case of Bergmann (cited above, §§ 95-99 and 101-102).

48. The Court reiterates, in particular, that an individual cannot be deprived of his liberty as being of “unsound mind” for the purposes of Article 5 § 1 (e) unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33, and Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012).

49. The objectivity of the medical expertise entails, in particular, a requirement that it was sufficiently recent (see Aurnhammer v. Germany (dec.), no. 36356/10, § 42, 21 October 2014; and also Ruiz Rivera v. Switzerland, no. 8300/06, § 60, 18 February 2014). In respect of persons in preventive detention, the Court has previously found that a situation in which the domestic courts based their decision not to release a person from preventive detention essentially on an outdated expert report on the danger he represented, or refrained from obtaining indispensable expert advice in this respect, raised an issue under Article 5 § 1. The reasonableness of the decision to extend a person’s preventive detention was called into question where the domestic courts plainly had at their disposal insufficient elements warranting the conclusion that the person concerned was still dangerous to the public (see Dörr v. Germany (dec.), no. 2894/08, 22 January 2013; and H.W. v. Germany, cited above, § 107, both concerning Article 5 § 1 (a)).

(b) Application of those principles to the present case

(i) Grounds for deprivation of liberty

50. In determining whether, in the present case, the applicant’s preventive detention, executed beyond the former statutory ten-year maximum duration, was justified under sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”, the Court must examine, first, whether it was established before a competent authority on the basis of objective medical expertise that the applicant suffered from a true mental disorder.

51. The Court notes that the Schleswig-Holstein Court of Appeal, agreeing with the Lübeck Regional Court’s conclusion, found that the applicant suffered from a profound personality disorder as defined by the ICD-10, namely a narcissistic personality disorder with emotionally unstable and sadistic elements.

52. In examining whether the domestic courts made this finding on the basis of objective medical expertise, the Court observes that they based their conclusions on the findings made by B., an external psychiatric expert (compare, a contrario, Ruiz Rivera, cited above, § 63). The latter, having examined the applicant in person, laid down his findings in a report dated 4 June 2010 which, therefore, was almost two-and-a-half years old at the time of the Court of Appeal’s decision on 21 November 2012.

53. However, the Court notes, first, that there is nothing to indicate, and the applicant did not allege, that his personal or therapeutic situation had changed substantially since the external expert report had been issued. More importantly, contrary to what the applicant suggested, that written report was not the only basis for the domestic courts’ decision. The Court has regard, in this respect, to the Court of Appeal’s explanation that the domestic courts’ assessment had further taken into account that expert B. had been heard by the Lübeck Regional Court on 6 June 2012 in different, related proceedings (concerning the request for the applicant’s transfer to a psychiatric hospital, see paragraphs 12 and 19 above). In those proceedings, the expert had updated and confirmed his previous findings on the applicant’s mental condition. Moreover, expert B.’s finding that the applicant suffered from a profound personality disorder had been shared in a recent written statement of the Hamburg-Eppendorf University hospital dated 27 March 2012. That statement, although it was drawn up without an examination of the applicant in person, was based on the voluminous case‑file.

54. In these circumstances, the Court is satisfied that the medical expert advice to which the domestic courts had regard was sufficiently recent.

55. The Court observes that the applicant further alleges, in substance, that the expert advice the domestic courts had before them was insufficient in that expert B.’s report did not concern the question to be determined in the proceedings at issue, namely whether it was very likely that the applicant would commit the most serious sexual offences if released, as a result of a mental disorder. The Court notes that it is true that the issues on which psychiatric expert B. was heard – the question of what relaxation of conditions of detention could be granted to the applicant and the question of whether the applicant’s reintegration into society could be better promoted in a psychiatric hospital (see paragraphs 9, 12 and 19 above) – were not identical to the question at issue in the present proceedings before the domestic courts. The statement of the Hamburg‑Eppendorf University hospital on the applicant’s mental condition was equally made in a different context, concerning the applicant’s therapeutic progress.

56. However, the Court observes that, albeit in different contexts, the medical experts addressed the question of the nature and gravity of the applicant’s mental disorder, which was relevant for the decision of the domestic courts in the proceedings at issue. The Court therefore takes the view that the domestic courts had based their conclusion that the applicant suffered from a mental disorder on sufficient medical expertise.

57. The Court does not overlook in that context that, unlike the Lübeck Regional Court and the Schleswig-Holstein Court of Appeal in the proceedings here at issue, the Hamburg Regional Court, in subsequent proceedings, based on a new report drawn up by a different psychiatric expert, L., considered that the applicant did not suffer from a mental disorder, but was only an accentuated personality, possibly with sadistic personality traits. The experts thus appear to have come to different conclusions as regards the assessment of the gravity of the applicant’s mental condition.

58. However, the sufficiency of the expert advice available in the proceedings at issue is not called into question by a subsequent diverging assessment of the applicant’s mental disorder, which may also be the result of changes in the applicant’s mental state after the court decisions in question.

59. As to whether the domestic courts, on the basis of the objective medical expertise before them, can be said to have established the presence of a true mental disorder for the purposes of Article 5 § 1 (e), the Court notes that the competent courts found that the applicant’s profound personality disorder amounted to a mental disorder for the purposes of section 1 (1) of the Therapy Detention Act.

60. The Court points out that it has previously observed 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, and Bergmann, cited above, § 113). It again stresses the necessity to interpret the permissible grounds for deprivation of liberty narrowly (see, inter alia, Glien, cited above, § 85, and Bergmann, ibid.).

61. In the present case, the Court can accept that the mental disorder the domestic courts found the applicant to suffer from was still sufficiently serious to amount to a true mental disorder for the purposes of Article 5 § 1 (e). His personality disorder was classified by the domestic courts as “profound” and as comprising, in particular, sadistic elements. It was further characterised as comprising denial of the applicant’s own aggression and minimisation of his criminal acts. It is furthermore clear that the applicant’s condition necessitated his comprehensive treatment with a course of therapy for sex offenders in a specialised institution.

62. The Court is satisfied that, as required by its case-law (see paragraph 48 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, if released, the applicant would commit the most serious sexual offences, similar to the six counts of rape of which he had previously been found guilty. Moreover, the validity of the applicant’s continued confinement depended upon the persistence of his mental disorder as, under domestic law, the continuation of his preventive detention could be ordered only if, and as long as, there was a high risk that he would reoffend as a result of that disorder if released.

63. 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”

64. In determining whether the detention of the applicant as a mental‑health patient was “lawful” for the purposes of sub-paragraph (e) of Article 5 § 1, the Court notes at the outset that the order for the applicant’s continued preventive detention was made under Article 67d of the Criminal Code, interpreted in the light of the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 9 and 23 above).

65. The Court must further examine whether the applicant’s detention was effected in a hospital, clinic or other appropriate institution. It notes that during the period here at issue (from 22 May 2013 until 24 October 2013), the applicant was detained in a newly set-up department for persons in preventive detention in Hamburg-Fuhlsbüttel Prison, constructed in order to satisfy the requirement, as defined by the Federal Constitutional Court in its leading judgment of 4 May 2011, to differentiate between preventive detention and imprisonment.

66. It is uncontested by the applicant that there was a substantial change in the medical and therapeutic care offered to him in that Centre, compared to the conditions prevailing in Lübeck Prison. In the Centre the applicant, who had refused to undergo therapy for years, in particular, started comprehensive therapy including one-to-one and group therapy sessions. The Court is therefore satisfied that the applicant was detained in an institution suitable for the detention of mental-health patients.

67. Moreover, despite the fact that, at the time of the impugned decisions of the domestic courts, the applicant was already some 68 years old and had been detained as a result of the judgment of the Lübeck Regional Court dated 28 March 1994 for some eighteen years, the applicant’s detention cannot be considered as arbitrary. The domestic courts, having regard to objective medical expert advice, convincingly reasoned that there was still a high risk that the applicant might commit further serious sexual offences (rape) if released, and thus posed a considerable threat to the public.

(iii) Conclusion

68. In view of the foregoing, the Court concludes that the applicant’s preventive detention at issue, in so far as the expert advice on which it was based is concerned and in so far as it was executed from 22 May 2013 until 24 October 2013, was justified under sub-paragraph (e) of Article 5 § 1 as lawful detention, ordered in accordance with a procedure prescribed by law, of a person “of unsound mind”.

69. There has accordingly been no violation of Article 5 § 1 of the Convention in this respect.

III. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION ON ACCOUNT OF THE RETROSPECTIVE EXTENSION OF THE APPLICANT’S PREVENTIVE DETENTION FROM 22 MAY 2013 UNTIL 24 OCTOBER 2013

70. The applicant further claimed that his continuing preventive detention beyond the former ten-year maximum duration, in so far as it had been executed in Hamburg-Fuhlsbüttel Prison between 22 May 2013 and 24 October 2013, had also violated the prohibition on retrospective punishment under Article 7 § 1 of the Convention which reads:

“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.”

71. The Government contested that argument.

A. Admissibility

72. The Court notes that this part of the application – which, as shown above, is equally not covered by the Government’s unilateral declaration – 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.

B. Merits

1. The parties’ submissions

73. Relying on the Court’s judgment in the case of M. v. Germany (cited above), the applicant argued that the retrospective extension of his preventive detention beyond the former ten-year maximum duration breached Article 7 § 1 of the Convention.

74. The Government, referring to the applicant’s own admission that the conditions of detention in Hamburg-Fuhlsbüttel Prison had been acceptable, took the view that the applicant’s preventive detention complied with Article 7 of the Convention since his transfer to that prison in May 2013.

2. The Court’s assessment

75. For a summary of the principles established in respect of Article 7 § 1, in so far as they are relevant for the case, the Court refers to the recapitulation of those principles in its judgment in the case of Bergmann (cited above, §§ 149-150).

76. In determining whether, in the present case, the applicant’s preventive detention, extended with retrospective effect beyond the former statutory ten-year limit, was a “penalty” for the purposes of Article 7 § 1, second sentence, the Court has regard, first, to its findings in the case of Bergmann (cited above, §§ 153-183). In that case, the Court had to determine whether the preventive detention of the applicant concerned, which could only be ordered because he suffered from a mental disorder, and was executed in a new Centre for persons in preventive detention, built in order to comply with the constitutional requirement to differentiate between preventive detention and imprisonment, had to be classified as a “penalty”.

77. The Court found in that judgment that in cases where preventive detention was extended because of, and with a view to, the need to treat the mental disorder of the person concerned, both the nature and the purpose of the person’s detention substantially changed compared to preventive detention executed irrespective of a mental disorder. Where preventive detention was, and could only be extended in order to treat a mental disorder in a suitable institution, the punitive element of preventive detention, and its connection with the person’s criminal conviction, was eclipsed to such an extent that the measure was no longer a penalty within the meaning of Article 7 § 1.

78. The Court observes that the preventive detention of the applicant was, and could equally only be, extended as the applicant was found to suffer from a mental disorder (see paragraphs 9 and 23 above). It was equally executed in a newly built Centre for persons in preventive detention. Although the Government submitted few details on the exact conditions of detention and treatment in that Centre, it is uncontested that the applicant was offered, and accepted, individualised care and comprehensive therapy addressing his mental condition in one-to-one and group therapy sessions.

79. In these circumstances, the Court concludes that the applicant’s preventive detention in the period at issue could no longer be classified as a “penalty”.

80. There has accordingly been no violation of Article 7 § 1 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Takes note of the terms of the respondent Government’s declaration relating to a breach of Articles 5 § 1 and 7 § 1 of the Convention on account of the retrospective extension of the applicant’s preventive detention, executed from 2 October 2012 until 22 May 2013, and of the modalities for ensuring compliance with the undertakings referred to therein;

2. Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

3. Declares the remainder of the application admissible;

4. Holds that there has been no violation of Article 5 § 1 of the Convention on account of allegedly insufficient expert advice or on account of the retrospective extension of the applicant’s preventive detention, executed from 22 May 2013 until 24 October 2013;

5. Holds that there has been no violation of Article 7 § 1 of the Convention on account of the retrospective extension of the applicant’s preventive detention, executed from 22 May 2013 until 24 October 2013.

Done in English, and notified in writing on 6 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoGanna Yudkivska
Deputy RegistrarPresident

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