Information Note on the Court’s case-law No. 140
April 2011
Jendrowiak v. Germany - 30060/04
Judgment 14.4.2011 [Section V]
Article 5
Article 5-1
Deprivation of liberty
Lawful arrest or detention
Continued placement in preventive detention beyond maximum period authorised at time of placement: violation
Facts – The applicant, who had a history of sexual offences, was convicted of a further offence in 1990 and given a three-year prison term. The court which convicted him also made an order for him to be placed in preventive detention at the end of his sentence on the grounds that he was likely to reoffend. Although at that time the maximum permitted period for preventive detention was ten years, the applicant, whose detention was reviewed at regular intervals, was held beyond that period on the basis of a statutory amendment in 1998 which allowed preventive detention to continue indefinitely. He was ultimately released in 2009 on health grounds.
Law – Article 5 § 1: This was a follow up case to M. v. Germany*. As in that case, the Court found that the applicant’s continued detention beyond the ten-year maximum period that had applied before the statutory amendment in 1998 was not justified under any of the sub-paragraphs of Article 5 § 1.
It went on to consider whether it could be justified by the State’s positive obligation under Article 3 to take measures designed to ensure that individuals within their jurisdiction were not subjected to torture or inhuman or degrading treatment, including by private individuals. In that connection, while accepting that the applicant’s continued preventive detention beyond the ten-year period had been ordered to protect potential victims from physical and psychological harm, the Court pointed out that, although the Convention obliged State authorities to take reasonable steps within the scope of their powers to prevent ill-treatment of which they had or ought to have had knowledge, it did not permit them to protect individuals from the criminal acts of another by measures which were themselves in breach of that other’s Convention rights, in particular, the right to liberty as guaranteed by Article 5 § 1. Consequently, since, in the present case, the applicant’s deprivation of liberty did not fall within any of the permissible grounds exhaustively listed in Article 5 § 1, the State could not rely on their positive obligations under the Convention to justify his continued detention. That provision contained all the grounds on which a person could be deprived of his liberty in the public interest, including the interest in protecting the public from crime.
Conclusion: violation (unanimously).
Article 7 § 1: Following its findings in M. v. Germany, the Court found that preventive detention was to be qualified as a penalty for the purpose of Article 7 § 1. The increase in the maximum period of preventive detention as a result of the statutory amendment in 1998 (from ten years to an indefinite term), constituted a heavier penalty which had been imposed on the applicant retrospectively. As regards the State’s positive obligation to protect potential victims from inhuman or degrading treatment by the applicant, the Court’s findings under Article 5 applied a fortiori to the prohibition of retrospective penalties under Article 7 § 1, from which no derogation was allowed even in time of public emergency threatening the life of the nation.
Conclusion: violation (unanimously).
Article 41: EUR 27,467 in respect of non-pecuniary damage.
(See also, for preventive detention not imposed by the trial court, Haidn v. Germany, no. 6587/04, 13 January 2011, Information Note no. 137)
* M. v. Germany, no. 19359/04, 17 December 2009, Information Note no. 125.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy