Haidn v. Germany

Information Note on the Court’s case-law No. 137

January 2011

Haidn v. Germany - 6587/04

Judgment 13.1.2011 [Section V]

Article 5

Article 5-1

Deprivation of liberty

Lawful arrest or detention

Indefinite preventive detention following completion of prison term: violation

Facts – In 1999 the applicant was given a three-and-a-half-year prison sentence following a conviction for rape. In April 2002, three days before he completed his sentence, the court responsible for the execution of sentences ordered his preventive detention in prison for an indefinite duration under the recently introduced Bavarian (Dangerous Offenders’) Placement Act after finding, on the basis of psychiatric reports, that he posed a serious risk to others. That decision was upheld on appeal. The applicant was held in preventive detention until December 2003 and from March to September 2004. He was subsequently admitted to a psychiatric unit.

Law – Article 5 § 1: The applicant’s preventive detention from April 2002 to December 2003 and from March to September 2004 did not constitute detention “after conviction” for the purposes of Article 5 § 1 (a) of the Convention in the absence of a sufficient causal link between the conviction and the detention. The trial court had not made, and had not had the power to make, any such order. The order made by the court responsible for the execution of sentences had not involved any finding of guilt and could not be regarded as having ensued “by virtue of” the criminal conviction simply because it referred to the conviction and was made while the sentence was still being served. Nor was the preventive detention covered by Article 5 § 1 (c) as being “reasonably considered necessary to prevent [the applicant’s] committing an offence”: Article 5 § 1 was to be interpreted narrowly and the potential further offences were not sufficiently concrete and specific as regards the place and time of commission or the victims. Lastly, the detention did not come within Article 5 § 1 (e). Although there was objective medical evidence to show that the applicant suffered from a personality disorder, a distinction was made in the German legal system between the placement of dangerous offenders in prison for preventive purposes and the placement of mentally ill persons in a psychiatric hospital. The applicant had been detained under the legislation on dangerous offenders, which required only an assessment of the risk he posed to the public, not of his mental health, and initially at least he had been held in an ordinary prison, rather than in a hospital, clinic or other appropriate institution. In sum, the applicant’s preventive detention was not covered by any of the sub-paragraphs of Article 5 § 1.

Conclusion: violation (unanimously).

Article 3: The Court was not persuaded that the combination of the applicant’s advancing years and declining (but not critical) health was such as to bring him within the scope of Article 3. Further, while the circumstances in which the applicant had been detained after completing his prison sentence must have generated feelings of humiliation and uncertainty going beyond the inevitable element of suffering connected with imprisonment, there was no indication of any intent to debase him by ordering his continued detention three days before his scheduled release. Lastly, although the order for his detention was of indefinite duration, the applicant had been entitled to a two-yearly review by the domestic courts. Accordingly, the minimum level of severity required for inhuman or degrading treatment or punishment had not been attained.

Conclusion: no violation (unanimously).

Article 41: Claim made out of time.

(See also, with reference to preventive detention ordered by the trial court itself but extending beyond the maximum ten-year period allowed under domestic law, M. v. Germany, no. 19359/04, 17 December 2009, Information Note no. 125; and three judgments of 13 January 2011: Kallweit v. Germany, no. 17792/07; Mautes v. Germany, no. 20008/07; and Schummer v. Germany, nos. 27360/04 and 42225/07)

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This summary by the Registry does not bind the Court.

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