FIFTH SECTION
DECISION
Application no. 47156/16
Herbert Rainer KLINKEL
against Germany
The European Court of Human Rights (Fifth Section), sitting on 11 December 2018 as a Chamber composed of:
André Potocki, President,
Angelika Nußberger,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 9 August 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Herbert Rainer Klinkel, is a German national who was born in 1956 and is currently detained in the centre for persons in preventive detention on the premises of Schwalmstadt prison. He was represented before the Court by Mr C.F. Wagner, a lawyer practising in Rheinböllen.
2. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.
3. The applicant complained, in particular, that his preventive detention had failed to comply with Article 5 § 1 of the Convention in the period from 10 November 2012 to 8 July 2014.
4. On 11 September 2017 the complaint concerning Article 5 § 1 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
A. The circumstances of the case
1. Background to the case
5. Since 1972 the applicant has been convicted several times for serious violent sexual offences and sentenced to imprisonment.
6. On 9 November 2004 the Limburg Regional Court convicted the applicant of, inter alia, one count of aggravated rape in conjunction with dangerous assault and deprivation of liberty and one count of aggravated rape in conjunction with deprivation of liberty, both committed in 2004. It sentenced him to eight years and six months’ imprisonment and ordered his subsequent preventive detention under Article 66 of the Criminal Code. The Regional Court, having consulted the psychiatric expert H., found that the applicant had a propensity to commit violent sexual offences and was therefore dangerous to the public.
2. The proceedings at issue
7. On 30 July 2012 the applicant filed a request that the execution of his preventive detention, once he had fully served his prison sentence on 9 November 2012, be suspended on probation or, in the alternative, be declared terminated.
8. On 7 September 2012 the Giessen Regional Court, sitting as a chamber responsible for the execution of sentences, requested a written expert report on whether the purpose of the measure continued to require the applicant’s placement in preventive detention (Article 67c of the Criminal Code). It commissioned the external psychiatric expert H., who had produced the report during the applicant’s trial before the Limburg Regional Court in 2004, to prepare the report.
9. On 18 September 2012 the applicant asked the Regional Court to replace H. with another expert, arguing that there was a risk of bias, given his role in connection with the applicant’s conviction. On 16 October 2012 the Regional Court dismissed the motion for bias. H.’s previous involvement did not per se attest to his bias, but rather meant that he was better able to judge any changes in the applicant’s personality. No other grounds for bias were discernible. The applicant filed an immediate complaint against that decision, which he later withdrew. He also made another application for bias against the expert, which the Regional Court again dismissed. In the meantime, he refused to be examined by H. on several occasions. On 7 June 2013 the Regional Court heard the applicant in the presence of his counsel, who again applied for a report to be requested from another expert. The applicant declared that he was willing to be examined by another expert.
10. On 12 June 2013 the Regional Court ruled that the execution of the applicant’s preventive detention continued to be necessary and that it was not disproportionate. Basing its decision on H.’s 2004 report and a statement from the prison authorities concerning the execution of the applicant’s prison sentence, it assumed that the danger posed by the applicant, as established in 2004, continued to exist, as there was nothing to support the finding that there had been significant change for the better. The applicant was responsible for the absence of a current expert report due to his continued refusal to be examined by H.
11. On 6 August 2013, in response to an immediate complaint filed by the applicant, the Frankfurt am Main Court of Appeal overturned that decision and referred the matter back to the Regional Court for a new decision. It stated that the proceedings before the Regional Court had been deficient, as there was no current expert report, despite it being mandatory under domestic law (Article 463 § 3, third sentence, in conjunction with Article 454 § 2 of the Code of Criminal Procedure in conjunction with Article 67c § 1, first sentence, number 1 of the Criminal Code). There was no good reason why the expert H. had not prepared a report. In view of the applicant’s refusal to be examined by H., the latter could have compiled a report on the basis of files. Documentation from the prison and the social‑therapy unit constituted sufficient indicators to assess the applicant’s development, including the danger he represented. The court added that an expert opinion based on thorough examination in person yielded significantly better information than a report compiled on the basis of files. Hence, where a detainee was unwilling to be examined by the expert chosen by the chamber competent for the execution of sentences, but willing to be examined by another, another expert should be appointed.
12. On 2 September 2013 the Regional Court appointed external psychiatric expert N., who subsequently examined the applicant in person on several occasions. N. submitted a report on 1 April 2014, stating that the applicant suffered from a dissocial personality disorder in the form of psychopathy. On 3 June 2014 the Regional Court orally heard expert N. and the applicant.
13. On 8 July 2014 the Regional Court found that the purpose of the measure continued to require the applicant’s placement in preventive detention and that such placement was not disproportionate. There had been no significant improvement in the applicant’s situation compared to 2004, when H. had assessed him to be very dangerous. The applicant had participated in a group course on social skills between February and May 2013 and, starting in April 2013, had attended a reasoning and rehabilitation programme, which was to be viewed positively. However, since December 2013, he had refused to undergo urine tests and maintained no contact with the psychology service, with which he also refused to cooperate. During the oral hearing, the applicant had justified his position by stating that the bond of trust had been broken because staff only gave negative reports about him. The court noted that the only positive point found by expert N. was the applicant’s increasing age and the therapy completed, resulting in a marginal reduction of the danger he posed. Yet, N. considered that there continued to be an unforeseeable risk that the applicant would reoffend upon release. N. also spoke of “sabotage of trust” by the applicant, because the latter violated the rules of placement by keeping a home-made form of alcohol in his cell, despite telling N. that he had abstained from alcohol for a long time after his earlier abuse of that substance. N. considered that preparatory measures were indispensable prior to release and that it would take another two to three years, without infringement of any rules by the applicant, for enough trust to be built for measures of relaxation to be considered. The Regional Court aligned itself with N.’s opinion.
14. On 19 August 2014 the Frankfurt am Main Court of Appeal dismissed the applicant’s immediate complaint against the Regional Court’s decision. It considered that N. had thoroughly and convincingly stated why there had been no significant change in the applicant’s dissocial personality disorder and why there continued to be a considerable risk that the applicant would reoffend upon release. The court thus found that the further execution of preventive detention was necessary. It also considered that the applicant had been offered sufficient individual therapy in preventive detention. Lastly, the length of the proceedings did not require the suspension or termination of the further execution of preventive detention.
15. It was true that the proceedings under Article 67c of the Criminal Code were not instituted in good time before the prison sentence was fully served. The expert H. was appointed only on 7 September 2012, that is, at a time when the final conclusion of these proceedings prior to the completion of the prison sentence could no longer be expected. Furthermore, following delays which were attributable to the applicant alone (manifold requests to disqualify the initially appointed expert and final refusal at the hearing of 7 June 2013 to be examined by that expert), the Regional Court had erred in law when it ordered, on 12 June 2013, the further execution of the – by then de facto – preventive detention without obtaining an expert report. This required the Court of Appeal to overturn this decision on 6 August 2013 and to refer the matter back to the Regional Court. Only from that moment onwards were the proceedings conducted without delays attributable to the authorities. Consequently, the deprivation of liberty for the aforementioned periods, in which there were delays attributable to the execution authorities and/or the judiciary, was unlawful. It could, however, be left open whether or not this should have led to the temporary suspension of the execution of the preventive detention order under Article 458 § 1 of the Code of Criminal Procedure. The temporary unlawfulness of the execution of the applicant’s preventive detention order did not require that it be suspended or even terminated. Rather, this unlawfulness was remedied by the Regional Court’s decision of 8 July 2014 and the present decision, which established that the purpose of the measure required the further execution of the applicant’s preventive detention.
16. On 8 September 2014 the Court of Appeal rejected the applicant’s objection to its decision of 19 August 2014, in which he alleged a violation of his right to be heard.
17. On 18 February 2016 the Federal Constitutional Court declined to admit the constitutional complaint, lodged on 17 September 2014, for adjudication (no. 2 BvR 2339/14). It provided the following reasoning:
“... To the extent that the complainant found himself in de facto preventive detention, after having fully served his prison sentence on 9 November 2012 until the decision of the Giessen Regional Court of 8 July 2014 ... and [to the extent that] the complainant cannot be held responsible for the fact that the decision on the execution of the preventive detention was not issued in good time, the complainant’s right to liberty under Article 2 § 2, second sentence, of the Basic Law has been violated. However, this finding was previously made, explicitly, in the decision of the Frankfurt am Main Court of Appeal of 19 August 2014. The complainant has no legitimate interest in a repeat finding by the Federal Constitutional Court that his right to liberty has been violated. ...”
B. Relevant domestic law and practice
18. The relevant domestic law and practice relating to preventive detention have been summarised in Schönbrod v. Germany (no. 48038/06, §§ 48-49, 24 November 2011), H.W. v. Germany (no. 17167/11, §§ 38-40 and §§ 43-44, 19 September 2013), and Bergmann v. Germany (no. 23279/14, §§ 42-75, 7 January 2016).
19. Article 2 § 2, second sentence, of the Basic Law provides that the liberty of the person is inviolable.
20. In accordance with the consistent case-law of the domestic courts, a claim for damages against the State arises directly from Article 5 § 5 of the Convention where a person has been deprived of his or her liberty in breach of Article 5 of the Convention (see Federal Court of Justice, no. III ZR 118/64, judgment of 31 January 1966; and no. III ZR 407/12, judgment of 19 September 2013). The claim exists regardless of there being any fault (Verschulden) on the part of the office-bearer acting on behalf of the authorities (ibid.). The domestic courts interpret a claim based on Article 5 § 5 of the Convention as being aimed at granting restitutio in integrum (echter Schadensersatz) to the injured party, covering both pecuniary and non-pecuniary damage (see Federal Court of Justice, no. III ZR 3/92, judgment of 29 April 1993). As regards the amount to be awarded in respect of non-pecuniary damage, the domestic courts base their assessment as to quantum on the amounts awarded by the Court in similar cases (see, for example, Federal Court of Justice, no. III ZR 407/12, cited above). The rules on the prescription of compensation claims (deliktische Ansprüche) apply by analogy to a claim based on Article 5 § 5 of the Convention (see Federal Court of Justice, no. III ZR 118/64, cited above; Frankfurt am Main Court of Appeal, no. 15 W 2/12, decision of 9 April 2013; Federal Constitutional Court, no. 1 BvR 414/04, decision of 6 October 2004). The prescription period of three years starts at the end of the year in which the claim arose and the claimant first had knowledge of the circumstances giving rise to the claim and the identity of the defendant, applied in accordance with Article 195 and Article 199 § 1 of the Civil Code.
COMPLAINT
21. The applicant complained under Article 5 § 1 of the Convention that he had been deprived of his liberty without a legal basis due to the domestic courts’ failure to decide prior to the end of his term of imprisonment on the necessity to execute the preventive detention order which the sentencing Limburg Regional Court had made against him in its judgment of 9 November 2004.
THE LAW
22. The applicant submitted that while he had served his term of imprisonment in full by 9 November 2012, the Giessen Regional Court ordered the (further) execution of his preventive detention only on 8 July 2014, following a remittal of the case to it. He had thus been deprived of his liberty without a legal basis by being placed in preventive detention between the end of his term of imprisonment and the Regional Court’s decision. He relied on 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 ...”
23. The Government acknowledged that the applicant’s preventive detention between 10 November 2012 and 8 July 2014 had breached Article 5 § 1 of the Convention. They submitted that he could, however, no longer claim to be a “victim” of that violation for the purposes of Article 34 of the Convention, because the Frankfurt am Main Court of Appeal and the Federal Constitutional Court had acknowledged the breach of Article 5 § 1 of the Convention in substance. This acknowledgement was sufficient redress for the breach of the Convention in the circumstances of the present case and deprived the applicant of his status as a “victim”. The violation at hand was a mere failure to comply with a time-limit. Even if the domestic courts had taken their decision in good time, they would have ordered the (further) execution of the applicant’s preventive detention, as it was never in doubt that he continued to be dangerous. Moreover, the applicant could have lodged an action for compensation based on Article 5 § 5 of the Convention before the domestic courts.
24. The applicant submitted that he was not required to turn to the domestic courts to seek damages and the prospects of such action were, in any event, uncertain.
25. The Court points out that in the case of Schwabe and M.G. v. Germany (nos. 8080/08 and 8577/08, ECHR 2011 (extracts)), in which the applicants had complained, inter alia, that their detention for preventive purposes had violated Article 5 § 1 of the Convention, it found, in respect of the Government’s objection on grounds of non-exhaustion of domestic remedies, which had been based on the fact that the applicants had not brought an action for compensation for their allegedly unlawful detention under Article 5 § 5 of the Convention before German courts:
“49. Under the Convention institutions’ well-established case-law, where lawfulness of detention is concerned, an action for damages against the State is not a remedy which has to be used, because the right to have the lawfulness of detention examined by a court and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights (see, inter alia, Włoch v. Poland, no. 27785/95, § 90, ECHR 2000‑XI; Belchev v. Bulgaria (dec.), no. 39270/98, 6 February 2003; and Khadisov and Tsechoyev v. Russia, no. 21519/02, § 151, 5 February 2009, with further references). Paragraph 1 of Article 5 of the Convention covers the former right and paragraph 5 of Article 5 the latter (see Khadisov and Tsechoyev, cited above, § 151).
50. The Court notes that the applicants complained before it that their detention for preventive purposes during a G8 summit had violated Article 5 § 1 and that they had previously contested the lawfulness of the detention order before all competent domestic courts. Having regard to the Court’s case-law, they thereby exhausted domestic remedies for the purposes of their complaint under Article 5 § 1. The Government’s objection of non‑exhaustion must therefore be dismissed.”
26. In the present case the applicant did not complain of a violation of Article 5 § 5 of the Convention, but of the unlawfulness of his detention under Article 5 § 1 of the Convention (see paragraph 21 above). It is in the light of this fact, as well as the above-cited finding in Schwabe and M.G., that the Court takes note of the Government’s decision not to raise the objection of non-exhaustion of domestic remedies, although the applicant had not used the established avenue under domestic law allowing for a claim of damages directly under Article 5 § 5 of the Convention. At the same time they submitted that the applicant had lost his status as a “victim” (see paragraph 23 above).
27. The Court reiterates that it falls, firstly, to the national authorities to redress any violation of the Convention. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case having regard, in particular, to the nature of the Convention violation at stake (Gäfgen v. Germany [GC], no. 22978/05, §§ 115-116, ECHR 2010, with further references).
28. The Court has previously adjudicated cases in which it found a violation of Article 5 § 1 of the Convention due to a failure of the domestic courts to take their decision on the (further) execution of preventive detention in compliance with the respective time-limits (see Schönbrod v. Germany, no. 48038/06, 24 November 2011; H.W. v. Germany, no. 17167/11, 19 September 2013). In those cases, it did not deem the finding of a violation to constitute in itself sufficient just satisfaction, but made awards in respect of non-pecuniary damage (Schönbrod, cited above § 116; H.W. v. Germany, cited above, § 126). The Court sees no reason to hold otherwise in the present case. Accordingly, it considers that the acknowledgement of a breach of Article 5 § 1 of the Convention by the domestic courts does not in itself constitute sufficient redress for that violation and does not deprive the applicant of his status as a “victim” for the purposes of Article 34 of the Convention. Compensation in respect of non-pecuniary damage in an adequate amount would be required to that end (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 202, ECHR 2006‑V; Moskovets v. Russia, no. 14370/03, § 50, 23 April 2009; Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003).
29. While upholding this approach the Court notes that in specific circumstances it can accept that the existence of a clear and established avenue under domestic law under which an adequate amount of compensation can be claimed may constitute sufficient redress within the meaning of the Court’s case-law on Article 34 of the Convention. In such cases, it would be incompatible with the principle of subsidiarity, which lies at the heart of the Convention system, not to allow a plea of non-exhaustion while, at the same time, denying the loss of victim status because of a lack of sufficient redress (see, mutatis mutandis, Daniel-P S.A. v. Moldova (dec.), no. 32846/07, §§ 23-25, 20 March 2012). After all, the acknowledgment of and redress for the breach of the Convention are usually the result of the process of exhaustion of domestic remedies (see Cazacliu and Others v. Romania (dec.), no. 63945/09, §120, 4 April 2017).
30. In this connection, the Court takes the view that it is for each Contracting Party to choose the avenue to award such compensation at national level. Under German law, damages cannot be awarded by the Federal Constitutional Court. However, there is clear and consistent case‑law of the domestic courts that a person who has been deprived of his or her liberty in breach of Article 5 of the Convention can bring a claim for damages, including non-pecuniary damages, against the respondent State under Article 5 § 5 of the Convention before the specialised courts (see paragraph 20 above). Three factors are relevant in this case. Both the Court of Appeal and the Federal Constitutional Court acknowledged that the delay in ordering the continued execution of his preventive detention meant that his de facto detention was unlawful and in breach of his right to liberty (see paragraphs 15 and 17 above and contrast Schwabe and M.G., cited above, where the domestic courts had not acknowledged a breach of the applicants’ rights under Article 5 § 1 of the Convention). A domestic compensation claim based on Article 5 § 5 of the Convention did not entail additional requirements. Had such a claim been introduced, the domestic courts would have based their assessment as to quantum on the amounts awarded by the Court in similar cases (see paragraph 20 above). In these circumstances, the Court finds that the applicant could reasonably have been expected to turn to the domestic courts to obtain compensation for the acknowledged breach of his rights under Article 5 § 1 of the Convention, rather than turning to this Court to seek confirmation of the already recognised unlawfulness of his detention.
31. The foregoing considerations are sufficient for the Court to conclude that the applicant can no longer claim to be the “victim” of a violation of Article 5 § 1 of the Convention for the purposes of Article 34 of the Convention. The application must therefore be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 17 January 2019.
Claudia WesterdiekAndré Potocki
RegistrarPresident
Full & Egal Universal Law Academy