Ilnseher v. Germany [GC]

Information Note on the Court’s case-law 224

December 2018

Ilnseher v. Germany [GC] - 10211/12 and 27505/14

Judgment 4.12.2018 [GC]

Article 7

Article 7-1

Heavier penalty

Retroactivity

Subsequent preventive detention of convicted murderer on basis of psychiatric assessments that he continued to pose a danger: no violation

Article 5

Article 5-1-e

Persons of unsound mind

Subsequent preventive detention of convicted murderer on basis of psychiatric assessments that he continued to pose a danger: no violation

Facts – In October 1999 the applicant was sentenced by a Regional Court to ten years’ imprisonment for a sexually motivated murder which he had committed at the age of 19 in 1997. His imprisonment was subsequently extended under successive judicial decisions, such as that given on 3 August 2012 by the Regional Court, based on psychiatric reports pointing to a high risk that if he were released he would commit further serious sexual and violent offences. In the meantime, on 4 May 2011, the Federal Constitutional Court delivered a leading judgment finding that the provisions on subsequent extensions of preventive detention and on subsequent preventive detention orders were incompatible with the Constitution. The court requested that the law be amended accordingly. The legislature therefore enacted the Preventive Detention (Distinction) Act, which came into force on 1 June 2013. Since 20 June 2013 the applicant has been held in a newly-built preventive detention centre providing an intensive treatment programme for sex offenders. On 18 September 2014 a fresh decision was issued ordering the continuation of the applicant’s preventive detention, in the framework of the periodic judicial-review procedure.

By unanimous judgment of 2 February 2017, a Chamber of the Court struck out of the list of cases the part of the application in respect of which the Government had made a unilateral declaration and which concerned the complaints of violations of Articles 5 § 1 and 7 § 1 in regard to the period of preventive detention from 6 May 2011 to 20 June 2013, which the applicant had spent in prison. The Chamber further unanimously found no violation of Articles 5 § 1 and 7 § 1 as regards the applicant’s retrospective preventive detention as of 20 June 2013. It considered, in particular, that the German courts had been justified in concluding that the applicant’s mental illness was such as to justify his detention as a person of unsound mind, and that since his preventive detention had been ordered because of that illness and with a view to treating it, that measure could not be classified as a “penalty”. Lastly, the applicant had been accommodated in an appropriate medical environment during the period in question.

The Chamber also unanimously found no violation of Article 5 § 4 on the grounds of the length of the judicial-review proceedings concerning the applicant’s provisional preventive detention, and no violation of Article 6 § 1 on the grounds of alleged lack of impartiality on the part of the Regional Court judge. That judge had reportedly warned counsel for the applicant to be careful if the latter were to be released, but the Chamber considered that the alleged warning had been given immediately following the delivery of the preventive detention decision and should therefore be interpreted, in substance, as a confirmation of the Regional Court’s findings.

On 29 May 2017 the case was referred to the Grand Chamber at the applicant’s request.

Law

The period from 6 May 2011 and 20 June 2013 falls outside the Grand Chamber’s jurisdiction since it was struck out of the list by the Chamber following the aforementioned unilateral declaration.

Article 5 § 1 (e): The period in issue in the proceedings before the Grand Chamber began on 20 June 2013, when the applicant was transferred from prison to the new preventive detention centre, and ended on 18 September 2014, when a fresh decision ordering the continuation of the applicant’s preventive detention was given in the framework of the periodic judicial-review procedure, which the applicant was able to challenge separately before the domestic courts.

(a) Grounds of detention – The domestic courts concluded, on the basis of an objective medical report drawn up by psychiatric experts, that the applicant suffered from a very severe form of sexual sadism. His state of health necessitated comprehensive therapy, to be provided either in the preventive detention centre or in a psychiatric hospital. The applicant was therefore suffering from a mental disorder for the purposes of the applicable German law, which stated that such disorder did not have to be so serious as to exclude or diminish the criminal responsibility of the person concerned when committing the criminal offence. That was sufficient for the Court to find that the applicant’s state of health as diagnosed constituted a true mental disorder for the purposes of Article 5 § 1 (e) of the Convention.

Furthermore, the fact that the trial court concluded from the applicant’s lack of a severe mental disorder that he had acted with full criminal responsibility when committing his criminal offence in 1997 is insufficient to cast doubt on the facts as established by the domestic courts concerning the applicant’s mental health from 20 June 2013 onwards. The national authorities have a certain margin of discretion in particular on the merits of clinical diagnoses. Moreover, the Regional Court addressed the evolution in the assessment of the applicant’s mental condition by the medical experts and the courts. In the context of Article 5 § 1 (e) it is only necessary to assess whether the person concerned is of unsound mind at the date of adoption of the measure depriving that person of his liberty (as opposed to the date of the commission of a previous offence, which, in any event, is not a precondition for detention under that sub-paragraph). Moreover, in determining whether the mental disorder is of a kind or degree warranting compulsory confinement, it is usually necessary to assess the danger a person poses to the public at the time of the order and in the future. In view of these essential prospective elements, the preventive detention ordered against the applicant can best be described as “subsequent” to his previous offence and conviction, despite the fact that, in the assessment of his dangerousness, regard should also be had to his history of offences, thus embracing a retrospective aspect.

Moreover, the Regional Court was justified in considering that the applicant’s mental disorder was of a kind or degree warranting compulsory confinement in view of the high risk, as established by that court, that the applicant, as a result of this disorder, would again commit another serious offence similar to the one of which he had been found guilty, if released.

Finally, the validity of the applicant’s continued confinement depended upon the persistence of his mental disorder. In accordance with domestic law, the domestic courts could order the continuation of his preventive detention in the subsequent periodical judicial-review proceedings only if, and as long as, there was a high risk that he would reoffend as a result of that disorder if released. Nothing in the file indicates that this risk had ceased to exist during the period of time in issue in the present case.

The applicant was therefore “a person of unsound mind” for the purposes of Article 5 § 1 (e).

(b) “Lawful” detention “in accordance with a procedure prescribed by law” – The applicant’s detention was ordered in a judgment of the Regional Court of 3 August 2012, and confirmed on appeal. Under the principles established by the Federal Constitutional Court in its leading judgment of 4 May 2011, such as compliance with the requirements of Article 5 § 1 (e), as applied by the Regional Court, this meant that the applicant was to be detained in a suitable institution. The applicant’s transfer, on 20 June 2013, to the preventive detention centre thus complied with the initial order made by the Regional Court, which remained a valid basis for the applicant’s detention.

Therefore, since this centre offered the applicant a personalised treatment protocol corresponding to his needs and his mental health, considerably improving his material conditions of detention as compared with prison, he now had a therapeutic environment suited to a person detained as a patient suffering from mental illness, and for the purposes of Article 5 § 1 (e), therefore, the applicant was detained in an appropriate establishment.

The domestic courts, relying on expert opinions, concluded that there was a high risk that, if the applicant were released, he would commit a further sexual offence, and considered that measures less severe than deprivation of liberty would be insufficient to protect individual and collective interests. Given the high risk that the individuals concerned would be the victims of one of the most serious criminal offences punishable under the Criminal Code, therefore, the deprivation of the applicant’s liberty was necessary under the circumstances.

(c) Conclusion – The applicant’s subsequently ordered preventive detention, in so far as it was executed as a result of the impugned judgment from 20 June 2013 until 18 September 2014 in the preventive detention centre, had been justified under sub-paragraph (e) of Article 5 § 1 as the lawful detention of “a person of unsound mind”.

Finding: no violation (fifteen votes to two).

Article 7

(a) The Court’s assessment in previous cases of preventive detention – When examining whether the impugned preventive detention of the applicant should be classified as a penalty for the purposes of Article 7 § 1, second sentence, in previous cases (see references at the end of this summary) the Court had to interpret the notion of penalty in Article 7 § 1 autonomously in these cases, also bearing in mind the classification of comparable measures in other Contracting Parties to the Convention.

In M. v. Germany the Court had concluded that preventive detention ordered and enforced in accordance with the German Criminal Code as it stood at the relevant time, that is detention in separate prison wings and without a mental disorder being a condition for such detention, had to be classified as a penalty. In Bergmann v. Germany the Court had been called upon to determine whether the subsequently prolonged preventive detention of the applicant, which was executed after the expiry of the above-mentioned transitional period, in accordance with the Preventive Detention (Distinction) Act, in a new separate centre for persons in preventive detention, that is to say in accordance with the new preventive detention regime, was compatible with Article 7 § 1 of the Convention. However, in cases such as that of the applicant, where preventive detention had been extended because of, and with a view to, the need to treat a mental disorder, which was a new precondition for subsequently extending his preventive detention, its nature and purpose had changed to such an extent that it was no longer to be classified as a penalty within the meaning of Article 7. Such preventive detention thus complied with Article 7 (see W.P. v. Germany).

(b) Measure imposed following conviction for a criminal offence – The preventive detention order against the applicant had not been made together with his conviction but had been imposed in a separate judgment in 2012. However, the order was nevertheless linked to the conviction – and thus “following” the latter – in compliance with domestic legislation.

It was clear when the Regional Court made its order on 3 August 2012 that, following the leading judgment of the Federal Constitutional Court of 4 May 2011 which the Regional Court applied, the applicant was to be transferred as soon as possible to an institution offering him not only conditions more assimilated to general living conditions but, in particular, therapeutic provision tailored to his needs as a mental health patient. The preventive detention order therefore covered the applicant’s detention in the new preventive detention centre in the period here in issue.

(c) Characterisation of the measure under domestic law – Domestic law has never considered preventive detention as a penalty to which the constitutional absolute ban on retrospective punishment applies. In its leading judgment of 4 May 2011, the Federal Constitutional Court again confirmed that principle, thus contradicting the Strasbourg Court’s findings concerning the notion of penalty under Article 7 of the Convention. However, the court considered that the provisions of the Criminal Code on the imposition and duration of preventive detention as they then stood failed to meet the constitutional requirement of differentiating between purely preventive measures of correction and prevention, such as preventive detention, and penalties, such as prison sentences. The court therefore ordered the legislature to amend the provisions on preventive detention in the Criminal Code so as to reflect that difference. Thus the legislative amendments to the Criminal Code introduced by the Preventive Detention (Distinction) Act serve to clarify and extend the differences between the way in which preventive detention and prison sentences are enforced.

(d) Nature and purpose of the preventive detention measure – In the framework of dialogue between the Court and the Federal Constitutional Court after the judgment in the case of M. v. Germany and the reply given by the latter in its leading judgment of 4 May 2011, the domestic authorities adopted wide-ranging measures at the judicial, legislative and executive levels with a view to tailoring the execution of preventive detention to the requirements both of the Constitution and the Convention. Thus, in the preventive detention centre set up under the new preventive detention system, the material conditions of detention imposed on the applicant as a person of unsound mind had been substantially improved as compared with those in ordinary prisons, the aim being to draw a distinction between those two forms of detention, as required by the Constitution. Above all, an increased number of specialised therapeutic staff provided inmates such as the applicant with individualised medical and therapeutic treatment in accordance with an individual treatment plan. It was only after the period covered by the proceedings here in issue that the applicant accepted some of the treatment offers made to him. However, the treatment in question was adequate, sufficient and available to the applicant at the relevant time.

It was a precondition for ordering or prolonging preventive detention subsequently that the person concerned should have been found guilty of a serious offence. However, the fact that the focus of the measure now lay on the medical and therapeutic treatment of the person concerned had altered the nature and purpose of the detention of persons such as the applicant and transformed it into a measure focused on the medical and therapeutic treatment of persons with a criminal history.

(e) Procedures involved in the making and implementation of the measure – The applicant’s preventive detention was imposed by the (criminal) trial courts; its subsequent implementation was to be determined by the courts responsible for the execution of sentences, that is to say courts also belonging to the criminal justice system. The courts belonging to the criminal justice system were particularly experienced in assessing the necessity of confining mental health patients who had committed a criminal act as they also dealt with decisions concerning detention in psychiatric hospitals. Furthermore, the criteria for the imposition of preventive detention would have been the same, irrespective of whether the civil or the criminal courts, which both belong to the courts with ordinary jurisdiction, had jurisdiction to impose that measure.

(f) Severity of the measure – The preventive detention order against the applicant did not stipulate any maximum period of detention. This type of order is therefore imposed as an ultima ratio measure because preventive detention is among the most serious measures which could be imposed under the Criminal Code. Also, since the applicant’s preventive detention had been ordered when he was thirty-five years old, he could potentially have remained in detention for a longer period of time than persons against whom such an order had been made at a more advanced age.

Nevertheless, the severity of the measure is not decisive in itself. Moreover, unlike in the case of prison sentences, the detention had no minimum duration either. The applicant’s release was not precluded until after a certain lapse of time, but was dependent on the courts’ finding that there was no longer a high risk that the applicant would commit the most serious types of violent crimes or sexual offences as a result of his mental disorder. The duration of the applicant’s detention thus depended to a considerable extent on his cooperation in necessary therapeutic measures. The applicant’s transfer to the new preventive detention centre had placed him in a better position to work towards his release by means of therapies tailored to his needs. Furthermore, his detention was subject to regular judicial reviews at relatively short intervals. That increased the probability that the measure would not last overly long. The severity of the preventive detention order was alleviated by these factors.

(g) Conclusion – The Court considered that preventive detention as implemented in accordance with the new legislative framework during the period here in issue could no longer be classified as a penalty within the meaning of Article 7 § 1. The applicant’s preventive detention had been imposed because of, and with a view to, the need to treat his mental disorder, having regard to his criminal history. The nature and purpose of his preventive detention, in particular, had been substantially different from those of ordinary preventive detention executed irrespective of a mental disorder. The punitive element of preventive detention and its connection with the criminal offence committed by the applicant had been erased to such an extent in these circumstances that the measure was no longer a penalty.

In view of these findings, it is not necessary to examine whether, by the order for and execution of the applicant’s subsequent preventive detention, a heavier measure was imposed on the applicant than the one that was applicable at the time he committed his criminal offence.

Conclusion: no violation (fourteen votes to three).

The Court also unanimously found no violation of Article 5 § 4 on the grounds of the length of the review proceedings into the lawfulness of the applicant’s provisional preventive detention, which had complied with his right to a prompt decision.

The Court further found, by fifteen votes to two, that there had been no violation of Article 6 § 1 in the framework of the proceedings concerning the lawfulness of the order placing the applicant in preventive detention, for lack of evidence that the judge was personally biased against the applicant or that there were objectively justified doubts as to his impartiality in the proceedings in issue.

(See M. v. Germany, 19359/04, 17 December 2009, Information Note 125; Bergmann v. Germany, 23279/14, 7 January 2016, Information Note 192; and W.P. v. Germany, 55594/13, 6 October 2016. See also Glien v. Germany, 7345/12, 28 November 2013, Information Note 168; and the Guide on Article 7 of the Convention)

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This summary by the Registry does not bind the Court.

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