FIFTH SECTION
DECISION
Applications nos. 58600/12 and 71215/13
Herbert Peter EBERHARD against Germany
The European Court of Human Rights (Fifth Section), sitting on 23 September 2014 as a Committee composed of:
Boštjan M. Zupančič, President,
Angelika Nußberger,
Vincent A. de Gaetano, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above applications lodged on 29 August 2012 and 18 October 2013 respectively,
Having regard to the declaration submitted by the respondent Government dated 30 April 2014 requesting the Court to strike the applications out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Herbert Peter Eberhard, is a German national, who was born in 1963 and is currently detained in Diez Prison. He was represented before the Court by Mr O. Möller, a lawyer practising in Völklingen.
The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice.
The applications had been communicated to the Government.
A. The circumstances of the case
The facts of the cases, as submitted by the parties, may be summarised as follows.
In two consecutive sets of proceedings, the Trier Regional Court and the Koblenz Regional Court decided that the applicant’s preventive detention, ordered by the Trier Regional Court on 19 May 1994 together with his conviction of sexual assault combined with dangerous assault, was to continue beyond the statutory ten-year time-limit applicable at the time of the applicant’s offence. That time-limit had expired on 21 September 2010.
The Trier Regional Court’s decision of 3 November 2011 (application no. 58600/12) and the Koblenz Regional Court’s decision of 15 November 2012 (application no. 71215/13) took into account the stricter criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011 (file nos. 2 BvR 2365/09 and others) for retrospectively prolonged preventive detention to continue during a transitional period until 31 May 2013. The Regional Court’s decisions were confirmed by the Koblenz Court of Appeal and by the Federal Constitutional Court (files nos. 2 BvR 255/12 and 2 BvR 469/13) respectively.
The applicant’s preventive detention at issue was initially executed in Wittlich Prison and since May 2012 in a separate wing of Diez Prison for persons in preventive detention. On 4 July 2013 the applicant was transferred to the newly constructed building for persons in preventive detention on the premises of Diez Prison.
B. Relevant domestic law and practice
A summary of the relevant provisions of the Criminal Code on preventive detention is contained, in particular, in the Court’s judgments in the cases of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009) and Glien v. Germany (no. 7345/12, §§ 32-52, 28 November 2013). The latter judgment further contains a summary of the judgment of the Federal Constitutional Court of 4 May 2011 (file nos. 2 BvR 2365/09 and others) on retrospectively prolonged and retrospectively ordered preventive detention, which was found to be incompatible with the Basic Law (see Glien, cited above, §§ 42-48).
On 1 June 2013 the Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung) entered into force. The legislator therein enacted new rules on the execution of preventive detention orders and on the execution of previous prison sentences, having regard to the requirements laid down in the Federal Constitutional Court’s above‑mentioned judgment of 4 May 2011.
COMPLAINTS
Relying on the Court’s findings in the case of M. v. Germany (cited above), the applicant complained that the retrospective prolongation of his preventive detention beyond the former statutory ten-year maximum duration violated Article 5 § 1 and Article 7 § 1 of the Convention.
THE LAW
A. Joinder of the applications
Given that the two applications at issue both concern orders for the retrospective prolongation of the same applicant’s preventive detention, ordered in two consecutive sets of proceedings, and thus related subject‑matters, the Court decides that the applications shall be joined (see Rule 42 § 1 of the Rules of Court).
B. The applicant’s complaints under Article 5 § 1 and Article 7 § 1 of the Convention
The applicant complained about the domestic courts’ decision to prolong his preventive detention beyond ten years. He relied on Article 5 § 1 and Article 7 § 1 of the Convention which, in so far as relevant, provide:
Article 5
“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;
...
(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; ...”
Article 7
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
1. The parties’ submissions
After the failure of attempts to reach a friendly settlement the Government informed the Court, by a letter of 30 April 2014, that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 § 1 (c) of the Convention.
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 21 September 2010 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 € 22,000 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.”
In their submissions explaining their recognition of a violation of the Convention, the Government argued that they considered the factual situation at issue in the present applications as being comparable to those in the case of Glien (cited above). The execution in practice of the applicant’s preventive detention had not complied with the Convention during the transitional period (set by the Federal Constitutional Court in its judgment of 4 May 2011, see above).
By submissions of 26 May 2014, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. He argued that, contrary to the Government’s view, his case was not comparable to that of Glien (cited above). In particular, unlike in the case of Glien, his detention could not be justified under Article 5 § 1 (e) of the Convention because, suffering only from a dissocial personality disorder, he could not be classified as a person “of unsound mind”. Therefore, he should be released immediately. Moreover, the amount proposed by the Government in their unilateral declaration was too low as he should be reimbursed EUR 88,000 for damages and EUR 20,000 for costs and expenses. Consequently, respect for human rights as defined in the Convention required that the Court continue the examination of his applications.
2. The Court’s assessment
The Court recalls 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”.
It also recalls that in certain circumstances, it may strike out an application 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 (see Rule 62A §§ 3 and 4, read in conjunction with Rule 54A of the Rules of Court; and Tahsin Acar v. Turkey, [GC], no. 26307/95, § 75, ECHR 2003-VI; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (cited above, §§ 75-77; see also WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; Sulwińska, cited above; and Tomeo v. Germany (dec.), no. 27081/09, 19 March 2013), and codified in Rule 62A.
The Court has established in a number of cases against Germany its practice concerning complaints about the violation of the right to liberty under Article 5 § 1 of the Convention and of the prohibition on retrospective punishment under Article 7 § 1 of the Convention in applications concerning the retrospective prolongation of the applicants’ preventive detention beyond the former statutory ten-year maximum duration applicable at the time of their offences (see, in particular, M. v. Germany, cited above, §§ 86-105 and §§ 117-137; Jendrowiak v. Germany, no. 30060/04, §§ 31-39 and §§ 45-49, 14 April 2011; O.H. v. Germany, no. 4646/08, §§ 76-95 and §§ 103-108, 24 November 2011; and Glien, cited above, §§ 71-108 and §§ 118-131 with further references).
The Court has found in that context, in particular, that even assuming that the applicants concerned could be considered as persons “of unsound mind” for the purposes of Article 5 § 1 (e) of the Convention, their detention in prison could not be justified under that provision as prisons could not be considered as institutions suitable for the detention of mental health patients (see Glien, cited above, §§ 90 and 92-108, with further references). Moreover, the Court already confirmed that preventive detention, executed in separate wings of prisons during the above‑mentioned transitional period until 31 May 2013, failed to comply with Article 7 § 1 of the Convention (see Glien, cited above, §§ 119-131). It considers that the present application raises issues comparable to those in the case of Glien (cited above).
The Court, having regard to the nature of the admissions contained in the Government’s declaration, notes that the Government recognised that the applicant’s rights under Articles 5 and 7 of the Convention had been violated because he had been remanded in preventive detention beyond ten years. The Government stressed that the applicant’s preventive detention at issue had been executed in prison which had not been a “suitable institution” in the circumstances. The Government therefore clearly acknowledged that there had been violations of the Convention in so far as the application was communicated to them by the Court (see Rule 62A § 1 (b); compare for this requirement also Missenjov v. Estonia, no. 43276/06, § 25, 29 January 2009; and Nelissen v. the Netherlands, no. 6051/07, § 39, 5 April 2011).
Moreover, as to the question whether the respondent State made an undertaking to provide adequate redress and, as appropriate, to take necessary remedial measures (Rule 62A § 1 (b); see also Tahsin Acar, cited above, § 76), the Court considers, first, that the amount of compensation proposed by the Government to provide redress to the applicant is consistent with the amounts awarded in similar cases (cited above). It considers that, in the event of failure to settle the amount of compensation within the three‑month 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. It would further add that it did not order, as a remedial measure, the immediate release of the detainees concerned in its previous judgments (cited above) finding breaches of Articles 5 and 7 of the Convention because of the retrospective prolongation of the applicants’ preventive detention.
As regards the remedial measures taken in general by the Government, the Court observes that following its judgment in the case of M. v. Germany (cited above), the Federal Constitutional Court held in its leading judgment of 4 May 2011 (see above) that all provisions on the retrospective prolongation of preventive detention were incompatible with the Basic Law. It set up stricter criteria for retrospectively prolonged preventive detention to continue during a transitional period until 31 May 2013, until the entry into force of new legislation on preventive detention. That transitional period now expired and the Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences entered into force on 1 June 2013.
In these circumstances, the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given that the Court has already clarified the nature and extent of the obligations arising under Articles 5 and 7 for the respondent State in a number of previous comparable cases, 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 the applications (Article 37 § 1 in fine).
Finally, the Court reiterates that, under Article 46 § 2 and Article 39 § 4 of the Convention, the Committee of Ministers is competent to supervise the execution of its final judgments and of the terms of friendly settlement decisions only. It emphasises, however, that, should the Government fail to comply with the terms of their unilateral declaration, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the respondent Government’s declaration under Article 5 and Article 7 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy