Information Note on the Court’s case-law No. 168
November 2013
Glien v. Germany - 7345/12
Judgment 28.11.2013 [Section V]
Article 5
Article 5-1-e
Persons of unsound mind
Preventive detention of mental-health patient in prison wing: violation
Article 7
Article 7-1
Heavier penalty
Retroactivity
Retrospective extension of preventive detention from a maximum of 10 years to an unlimited period of time: violation
Facts – Following the European Court’s judgments in M. v. Germany and various follow-up cases, the German Federal Constitutional Court held in a judgment of 4 May 2011 that provisions on the retrospective prolongation of preventive detention were incompatible with the German Basic Law. It further ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation or 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, it required domestic courts dealing with the execution of sentences to examine without delay whether, owing to specific circumstances relating to their person or conduct, the detainees were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of the newly enacted Therapy Detention Act. Detainees in respect of whom these pre-conditions were not met had to be released by no later than 31 December 2011.
The applicant was convicted in 1997 of child sexual abuse and sentenced to four years’ imprisonment. The trial court also made an order for his preventive detention because of the risk of his reoffending. The preventive detention began in 2001 and was renewed at regular intervals. At the end of the maximum ten-year period that had been applicable when the offences were committed and in reliance on the Constitutional Court’s judgment of 4 May 2011 the applicant sought his immediate release. His application was refused in September 2011 on the grounds that he was suffering from dissocial personality disorder and paedophilia which, though not pathological, constituted a mental disorder for the purposes of the Therapy Detention Act and made it highly likely that he would reoffend. The conditions laid down by the Constitutional Court for his continued preventive detention were therefore satisfied.
Law – Article 5 § 1: The Court considered only the period relating to the extension of the applicant’s preventive detention ordered in September 2011 which the Government had argued was justified under sub-paragraph (e) of Article 5 § 1 as being detention of a person “of unsound mind”. The Court noted that while it had not established a precise definition of the term “persons of unsound mind” in its case-law, the permissible grounds for deprivation of liberty under Article 5 were to be interpreted narrowly. A mental condition had to be of a certain gravity in order to be considered a “true” mental disorder for the purposes of Article 5 § 1 (e). In addition, the detention of a person as a mental-health patient was covered by Article 5 only if it was effected in a hospital, clinic or other appropriate institution.
The Court considered that the notion of “persons of unsound mind” in Article 5 § 1 (e) of the Convention might be more restrictive than the notion of “mental disorder” referred to in the German Therapy Detention Act. However, it did not have to give a definitive answer to the question of the applicant’s classification as a “person of unsound mind” in the present case since, in any event, he could not be said to have been held in a “hospital, clinic or other appropriate institution”.
Although the Government had argued that the applicant’s detention in a separate prison wing for persons in preventive detention had differed significantly from the execution of a normal prison sentence in that detainees had more freedom of movement and more possibilities for leisure activities than prisoners, the Court was not persuaded that he had been provided with a medical or therapeutic environment appropriate to a person detained as a mental-health patient. While, acknowledging the extensive measures Germany had recently initiated with a view to preventive detention becoming adapted in the future to constitutional and Convention requirements, notably through the provision of an environment significantly different from normal imprisonment, and while accepting that a transitional period might be necessary to implement these changes, the Court was not convinced that the domestic courts could not meanwhile have adapted the applicant’s detention conditions to the needs of a person “of unsound mind”, for example, by ordering his transfer to a psychiatric hospital or other appropriate institution. Indeed, the Therapy Detention Act expressly provided for just such a possibility. Prolonging the applicant’s preventive detention in a prison wing had not been the only alternative to immediate release available to the authorities.
The applicant’s preventive detention in the prison wing was therefore not justified under Article 5 § 1 (e). Further, his continued preventive detention beyond the former ten-year time-limit could no longer be justified under Article 5 § 1 (a) as it was no longer detention of a person “after conviction”, nor could it be justified under any of the other sub-paragraphs of Article 5 § 1.
Conclusion: violation (unanimously).
Article 7 § 1: As in M. v. Germany, in which the Court had found a violation of Article 7, the applicant’s preventive detention had been extended with retrospective effect beyond the maximum duration permitted at the time he committed the offences. The Court therefore had to determine whether his detention for that additional period amounted to a “penalty”, a notion which for the purposes of Article 7 § 1 of the Convention was autonomous in scope. The starting-point and thus a very weighty factor in this assessment was that the preventive detention was imposed following his conviction of criminal offences. As regards the nature of the preventive detention, it entailed a deprivation of liberty and the alterations to the detention regime were not such as to distinguish it from a prison sentence. As regards its purpose, although the respondent State had initiated extensive measures with a view to gearing preventive detention, through the provision of adequate treatment, towards reducing detainees’ dangerousness and creating the conditions for their release, the applicant had not been provided with any such additional measures. The preventive detention had been ordered by the sentencing courts and its execution was determined by the courts responsible for the execution of sentences. Finally, as regards the severity of the measure, it still entailed detention with no maximum duration and no possibility of release unless a court found that it was not highly likely that the applicant would commit the most serious offences or that he was suffering from a mental disorder. Indeed, preventive detention remained among the most severe measures possible under the German Criminal Code and in the applicant’s case had lasted approximately three times the length of his prison sentence.
The applicant’s preventive detention in the period beyond the maximum permitted duration before the law was retrospectively changed therefore had to be classified as a “penalty” for the purposes of Article 7 § 1.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of non-pecuniary damage.
(See M. v. Germany, 19359/04, 17 December 2009, Information Note 125. See also Schmitz v. Germany (30493/04) and Mork v. Germany (31047/04 and 43386/08), both judgments of 9 June 2011 summarised in Information Note 142; and O.H. v. Germany, 4646/08, 24 November 2011, Information Note 146)
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This summary by the Registry does not bind the Court.
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