FIFTH SECTION
Application no. 10211/12
Daniel ILNSEHER
against Germany
lodged on 24 February 2012
STATEMENT OF FACTS
The applicant, Mr Daniel Ilnseher, is a German national, who was born in 1978 and is currently detained in Straubing Prison. He is represented before the Court by Mr A. Ahmed, a lawyer practising in Munich.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s conviction and the order for his retrospective preventive detention
(a) The applicant’s criminal conviction and the execution of his sentence
On 29 October 1999 the Regensburg Regional Court convicted the applicant, a first offender, of murder and, applying the criminal law relating to young offenders, sentenced him to ten years’ imprisonment (the maximum sentence under that law). It found that the applicant, then aged nineteen, had killed a thirty-one-year-old woman in June 1997. The applicant had strangled the woman, who was jogging on a forest path, after a fight lasting several minutes, had undressed the dead or dying woman partly and had then masturbated. The Regional Court considered that the applicant had initially planned to rape and then kill his victim, but had no longer wanted to rape his dead or dying victim. Having consulted two experts, the court further considered that the applicant, who did not suffer from a mental illness, had acted with full criminal responsibility.
From December 2001 until January 2007 the applicant was detained and treated in the social therapeutic department for sexual offenders in Bayreuth Prison. From January to August 2007 he was placed in the social therapeutic department of Straubing Prison. The therapies were considered as unsuccessful and were discontinued as the applicant failed sufficiently to participate in them.
(b) The order for the applicant’s retrospective preventive detention
On 14 July 2008 the Regensburg Regional Court ordered the applicant’s provisional preventive detention under Article 275a § 5 of the Code of Criminal Procedure (see Relevant domestic law and practice below) from 17 July 2008 onwards, when he would have served his full prison sentence. The Regional Court found that it was very likely that the applicant’s preventive detention would be ordered retrospectively under Article 7 § 2 of the Juvenile Courts Act (Jugendgerichtsgesetz), which had entered into force two days earlier. On 22 October 2008 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the Regional Court’s order.
On 22 June 2009 the Regensburg Regional Court ordered the applicant’s retrospective preventive detention under Article 7 § 2 no. 1 of the Juvenile Courts Act, read in conjunction with Article 105 § 1 of the Juvenile Courts Act (see Relevant domestic law and practice below).
The Regional Court found that, as required by Article 7 § 2 no. 1 of the Juvenile Courts Act, the applicant had been imposed a sentence relating to young offenders of more than seven years for murder, a felony against live, physical integrity or sexual self-determination by which the victim suffered grave damage. Moreover, there was evidence which indicated that the applicant presented a significant danger to the general public. A comprehensive assessment of the applicant, his offence and, in addition, his development during the execution of the sentence relating to young offenders revealed that there was a high risk that the applicant would again commit serious sexual offences, including murder for sexual gratification, if released.
Having regard to the reports made by a criminological expert (Bo.) and a psychiatric expert (Ba.) who had examined the applicant in person, the Regional Court found that the applicant suffered from a multiple sexual preference disorder with sadistic elements and a personality disorder characterised by emotional instability and impulsiveness. These mental illnesses had triggered his crime. Since the age of fifteen, the applicant had suffered from violent sexual phantasies of strangulating women and had ultimately realised them. These phantasies, even though they might have diminished, had persisted during his detention, as the applicant had himself admitted to several experts in 2005 and 2008. According to expert Ba.’s findings, the fact that, despite the progress made by the applicant in the course of his therapies, he had not yet developed sufficient mechanisms for averting further offences had also been caused by the fact that the applicant’s therapies until then had not taken into account the fact that he suffered from a mental illness.
The Regional Court noted in that context that it did not have jurisdiction to decide whether, as proposed by expert Ba., the applicant’s preventive detention should be executed in a psychiatric hospital under Article 67a § 2, read in conjunction with Article 63 of the Criminal Code (see Relevant domestic law and practice below). It was for the courts dealing with the execution of sentences to decide on that issue at a later stage.
On 9 March 2010 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. It considered, in particular, that Article 7 § 2 of the Juvenile Courts Act complied with the constitutional prohibition on retrospective penalties as preventive detention was not to be considered as a penalty. Likewise, it did not breach the constitutional protection of legitimate expectations in a State governed by the rule of law. Moreover, the provision did not breach the Convention. In particular, the European Court of Human Right’s judgment of 17 December 2009 in the case of M. v. Germany (no. 19359/04), which was not yet final, concerned the retrospective prolongation of preventive detention, as distinct from a retrospective order of preventive detention against a person of unsound mind under the criminal law relating to young offenders at issue in the present case.
On 4 May 2011 the Federal Constitutional Court, in a leading judgment, allowed the applicant’s constitutional complaint. It quashed the Regional Court’s judgment of 22 June 2009 and the Federal Court of Justice’s judgment of 9 March 2010 and remitted the case to the Regional Court. It further quashed the order of 14 July 2008 for the applicant’s provisional preventive detention, confirmed on 22 October 2008 (file no. 2 BvR 2333/08 and no. 2 BvR 1152/10).
The Federal Constitutional Court found that the impugned judgments and decisions violated the applicant’s right to liberty and the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law (see in detail Relevant domestic law and practice below).
2. The proceedings at issue, concerning the applicant’s provisional preventive detention
(a) The proceedings before the Regional Court
On 5 May 2011 the applicant requested the authorities competent for the execution of sentences to order his immediate release.
On 6 May 2011 the Regensburg Regional Court, allowing the Public Prosecutor’s request of 5 May 2011, again ordered the applicant’s provisional preventive detention under Articles 7 § 4 and 105 § 1 of the Juvenile Courts Act, read in conjunction with Article 275a § 5, first sentence, of the Code of Criminal Procedure (see Relevant domestic law and practice below). The applicant was represented in the proceedings by three lawyers practicing in Karlsruhe, Munich and Irschenberg respectively.
The Regional Court found that the applicant’s provisional preventive detention was necessary because there were weighty grounds for expecting that his retrospective preventive detention would be ordered under Article 7 § 2 no. 1 of the Juvenile Courts Act, read in the light of the judgment of the Federal Constitutional Court of 4 May 2011 (see Relevant domestic law and practice below).
The Regional Court found that the applicant suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act (see Relevant domestic law and practice below). He had been diagnosed with a multiple disorder of his sexual preferences and from a personality disorder with emotionally instable, impulsive elements, as defined by the International Statistical Classification of Diseases and Related Health Problems (ICD-10). According to the court’s findings to date, these mental illnesses had been the cause for the crime the applicant had committed.
Furthermore, there were weighty grounds for expecting that the Regional Court would conclude in the main proceedings that it was highly likely that the applicant, owing to specific circumstances relating to his person or his conduct, would commit the most serious crimes of violence or sexual offences if released. The applicant had been found guilty of a most serious offence, murder. Having regard to the Regional Court’s findings in its judgment of 22 June 2009, it currently had to be assumed that it was highly likely that the applicant would again put his phantasies of violence in practice in a stress situation and would again commit the most serious sexual offences, including murder for sexual gratification, if released. The recent report drawn up by a psychiatric expert (S.) on 11 October 2010 had confirmed the applicant’s personality disorders. It had to be noted in that context that psychiatric expert O. had found in his report dated 16 January 2006 that the applicant’s sexual preference disorder was still progressing. The Straubing Prison authorities, in their submissions dated 20 October 2010, had equally considered that the applicant was still in need of therapeutic treatment and should be transferred to a psychiatric hospital therefor.
The Regional Court further considered that, having regard to its above findings, the applicant’s provisional preventive detention complied with the strict standards of proportionality set by the Federal Constitutional Court in its judgment of 4 May 2011. In particular, the supervision of the applicant’s conduct was insufficient to protect the public as long as he had not been sufficiently treated.
(b) The proceedings before the Court of Appeal
On 27 June 2011 the applicant lodged an appeal against the Regional Court’s decision, for which he submitted further statements of grounds on 15, 19, 22, 25 and 26 July 2011. He claimed, in particular, that his provisional preventive detention was unlawful and complained about the length of the proceedings and of his detention since the end of his prison term on 17 July 2008.
On 4 July 2011 the Regensburg Regional Court refused to amend its decision of 6 May 2011.
On 20 July 2011 the Nuremberg General Public Prosecutor requested the Court of Appeal to dismiss the applicant’s appeal.
On 16 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s appeal as ill-founded. Having regard to the findings of fact made by the Regensburg Regional Court in its judgment of 22 June 2009 and also to the restrictive standards set by the Federal Constitutional Court, it confirmed the Regional Court’s finding in its decision of 6 May 2011 that there were weighty grounds for expecting that the applicant’s retrospective preventive detention would be ordered under Article 7 § 2 no. 1 of the Juvenile Courts Act.
The Court of Appeal further considered that the constitutional right to a speedy decision in proceedings entailing detention had still been complied with. It noted in that context that the Regional Court had not yet mandated new experts in the main proceedings. However, the applicant’s counsel, by submissions dated 18 and 30 May 2011, had rejected the experts practising in Bavaria proposed by the Regional Court and had proposed mandating two other experts. It was to be expected that the Regional Court would mandate its experts without delay after having heard the applicant’s view.
On 29 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s complaint about a breach of his right to be heard and his objection to the decision of 16 August 2011.
(c) The proceeedings before the Federal Constitutional Court
On 7 September 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Regensburg Regional Court dated 6 May 2011, confirmed by the Nuremberg Court of Appeal on 16 August 2011. He further requested to stay the execution of these decisions by way of an interim measure until the decision of the Federal Constitutional Court.
The applicant argued, in particular, that his constitutional right to liberty had been breached in several respects. In particular, the principles of legality and of proportionality and the principle of protection of legitimate expectations in a State governed by the rule of law had not been complied with. His provisional preventive detention had been requested only after the execution of his prison sentence and after the Federal Constitutional Court’s judgment of 4 May 2011 which had quashed the Regional Court’s judgment of 22 June 2009 ordering his preventive detention retrospectively. Moreover, his right to a speedy decision, enshrined in his constitutional right to liberty, in the main proceedings during which he had been detained, and also in the proceedings concerning the review of his provisional preventive detention, had not been respected and his provisional preventive detention, executed since 17 July 2008, had become disproportionate.
On 18 October 2011 the Federal Constitutional Court communicated the constitutional complaint to the Government of Bavaria, to the President of the Federal Court of Justice and to the General Public Prosecutor at the latter court.
On 25 October 2011 the Federal Constitutional Court refused to stay the order for the applicant’s provisional preventive detention by way of an interim measure. It found that the applicant’s constitutional complaint was neither inadmissible nor manifestly ill-founded. It had to weigh the consequences of granting an interim measure when the constitutional complaint was later dismissed against those of refusing an interim measure when the constitutional complaint was later granted.
The Federal Constitutional Court found that if it refused an interim measure and the applicant’s complaint was subsequently allowed, the applicant would suffer an irreparable loss of personal liberty by the execution of his provisional preventive detention in the meantime. However, if the interim measure was granted and the applicant’s constitutional complaint was later dismissed, there would equally be significant disadvantages. The criminal courts had found on the basis of medical expert evidence that there was still a high risk that the applicant might commit the most serious sexual offences, including murder for sexual gratification, if released. The applicant’s dangerousness was caused by a multiple disorder of his sexual preferences with sadistic elements and by his emotionally instable, impulsive personality which to date have been insufficiently treated. In view of the particular seriousness of the offences he might commit, public interest in security outweighed the applicant’s personal interest in his liberty.
On 22 May 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1952/11).
3. Further developments: The main proceedings concerning the fresh order for the applicant’s retrospective preventive detention
On 3 August 2012 the Regensburg Regional Court, having held hearings on 24 days starting from 12 December 2011 and having consulted two psychiatric experts, again ordered the applicant’s retrospective detention under Articles 7 § 2 no. 1 and 105 § 1 of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011.
On 5 March 2013 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded.
4. The conditions of the applicant’s detention during the execution of the order for his provisional preventive detention
On 6 May 2011 the applicant was transferred from the wing for persons in preventive detention in Straubing Prison to a wing for persons in detention on remand. As a consequence, the applicant lost the privileges reserved for persons in preventive detention compared to other detainees. In particular, he had to remain in his cell 23 hours per day and lost his job as an indoor worker. Furthermore, there were no longer any offers of therapy.
On 25 May 2011 the Regensburg Public Prosecutor’s Office requested the Regional Court to order the applicant’s detention in the wing for persons in preventive detention in Straubing Prison. It confirmed that the applicant’s new conditions of detention were less advantageous than his conditions in preventive detention. This contradicted the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment.
It appears that the applicant kept being detained under the conditions applicable to persons in detention on remand in Straubing Prison.
B. Relevant domestic law and practice
A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). The provisions referred to in the present case provide as follows:
1. Preventive detention orders against juveniles and young adults
Initially, the Juvenile Courts Act did not authorise orders for preventive detention against juveniles and against young adults to whom the criminal law relating to young offenders was applied.
By the Act on the introduction of retrospective preventive detention for convictions under the criminal law relating to young offenders (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht) of 8 July 2008, which entered into force on 12 July 2008, Article 7 § 2 was inserted in the Juvenile Courts Act.
Article 7 § 2 of the Juvenile Courts Act, in the version in force until 31 May 2013, provided:
“If, following conviction to a sentence relating to young offenders of at least seven years for or also for a felony
1. against live, physical integrity or sexual self-determination or
2. ...
by which the victim either suffered grave mental or physical damage or was exposed to a risk of suffering such damage, there is evidence prior to the end of enforcement of the sentence relating to young offenders which indicates that the convicted person presents a significant danger to the general public, the court may order preventive detention retrospectively if a comprehensive assessment of the convicted person, his offence or offences and, in addition, his development during the execution of the sentence relating to young offenders reveals that it is very likely that he will again commit offences of the nature described above.”
Article 105 § 1 of the Juvenile Courts Act provides that the court applies certain provisions of that Act relating to juveniles (persons aged between fourteen and eighteen) if a young adult aged between eighteen and twenty‑one commits an offence and if, in particular, a comprehensive assessment of the perpetrator’s personality, taking into account his living environment, demonstrated that the perpetrator had the moral and intellectual development of a juvenile at the time of his offence.
Under Article 7 § 4 of the Juvenile Courts Act, in the version in force until 31 May 2013, the courts were obliged to examine in yearly intervals whether the preventive detention order may be suspended and a measure of probation applied. Moreover, under Article 7 § 4 of the Juvenile Courts Act, in the version in force at the relevant time, read in conjunction with Article 275a § 5, first sentence, of the Code of Criminal Procedure, the court could order a person’s provisional preventive detention (until the finality of the judgment on retrospective preventive detention) if there were weighty grounds for expecting that the person’s retrospective preventive detention would be ordered.
2. Transfer for enforcement of a different measure of correction and prevention
Article 67a of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, of the Criminal Code, the court may subsequently transfer a person against whom preventive detention was ordered to a psychiatric hospital or to a detoxification facility if the person’s reintegration into society can be better promoted thereby.
3. The detention of mentally ill persons
The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.
Furthermore, on 1 January 2011, following the Court’s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Therapy Detention Act – Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter) entered into force. Under sections 1 § 1 and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be necessary for the protection of the public.
4. The Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011
On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code and Article 7 § 2 of the Juvenile Courts Act (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.
The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code and of the Juvenile Courts Act on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot).
The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged retrospectively, or ordered retrospectively under Article 66b § 2 of the Criminal Code or Article 7 § 2 of the Juvenile Courts Act, the courts dealing with the execution of sentences had to examine without delay whether it was highly likely that the persons concerned, owing to specific circumstances relating to their person or their conduct, would commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The Federal Constitutional Court further ordered that the time-limit for review of the necessity of a continuous preventive detention under Article 7 § 4 of the Juvenile Courts Act was reduced from one year to six months.
In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung; ibid., § 89). It stressed that, in line with that openness of the Constitution to public international law, it attempted to avoid breaches of the Convention in the interpretation of the Constitution (ibid., §§ 82 and 89).
In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).
Having regard to the constitutional protection of legitimate expectations in a State governed by the rule of law and the valuations of Article 5 and Article 7 of the Convention, the retrospective order of preventive detention under Article 7 § 2 of the Juvenile Courts Act, in particular, was only constitutional in practice if, inter alia, the requirements of Article 5 § 1 (e) were met (ibid., §§ 143 and 151-156). The Federal Constitutional Court expressly referred in that context to the case-law of the European Court of Human Rights according to which the detention of a person as a mental health patient would only be lawful for the purposes of Article 5 § 1 (e) of the Convention if effected in a hospital, clinic or other appropriate institution (ibid., § 155).
COMPLAINTS
1. In the applicant’s submission, his preventive detention breached Article 5 § 1 of the Convention. That detention was not justified, in particular, under sub-paragraph (a) of Article 5 § 1 and could no longer be considered as “lawful”, given that the Federal Constitutional Court, in its judgment of 4 May 2011, considered preventive detention as incompatible with the Basic Law.
2. The applicant further complains under Article 7 § 1 of the Convention that his preventive detention, a penalty ordered on the basis of a legal provision which entered into force after he had committed his offence, violated the his right not to have a heavier penalty imposed on him than the one applicable at the time of his offence. He relied on the Court’s judgment in the case of M. v. Germany (no. 19359/04, ECHR 2009) to support his view.
3. Moreover, the applicant argues that the length of the proceedings against him, which have been pending since 17 July 2008 when he had served his full prison sentence, and the length of his ensuing detention on remand, was excessive and breached Article 6 § 1 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
In particular, were the main proceedings concerning the request for a fresh order for the applicant’s retrospective preventive detention under Article 7 § 2 of the Juvenile Courts Act an effective remedy within the meaning of this provision in respect of the applicant’s complaints under Articles 5 § 1 and 7 § 1 of the Convention about his provisional preventive detention?
2. Assuming the exhaustion of domestic remedies by the applicant, was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention in so far as he was remanded in provisional preventive detention as a result of the proceedings at issue?
In particular, having regard to the Court’s case-law in the case of M. v. Germany (no. 19359/04, ECHR 2009) and a number of follow-up cases (see, in particular, Kallweit v. Germany, no. 17792/07, 13 January 2011; O.H. v. Germany, no. 4646/08, 24 November 2011; and Kronfeldner v. Germany, no. 21906/09, 19 January 2012), did that deprivation of liberty, executed in prison, in a wing for persons in detention on remand, fall within any of the sub-paragraphs (a) to (f) of Article 5 § 1?
3. Assuming the exhaustion of domestic remedies by the applicant and taking into consideration, in particular, the Court’s conclusions in its judgment in the case of M. v. Germany (cited above), was a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of the offence in the present case, as proscribed by Article 7 § 1 of the Convention?
4. Did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his provisional preventive detention, comply with the “speed” requirement of Article 5 § 4 of the Convention?
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