Information Note on the Court’s case-law 207
May 2017
Ilnseher v. Germany (referral) - 10211/12 and 27505/14
Judgment 2.2.2017 [Section V]
Article 7
Article 7-1
Heavier penalty
Retroactivity
Retrospective preventive detention of convicted murderer on basis of psychiatric assessments that he continued to pose a danger: case referred to the Grand Chamber
The applicant has been in preventive detention since completing a ten-year prison sentence for a sexually motivated murder committed at the age of 19. His detention was retrospectively extended by subsequent court orders, based upon psychiatric assessments which revealed a high risk that he might commit similar serious crimes of a sexual and violent nature if released. Since 20 June 2013 the applicant has been detained in a newly built preventive detention centre offering an intensive treatment programme for sex offenders.
In the Convention proceedings, the applicant complained of violations of Articles 5 § 1 and 7 § 1 of the Convention in respect of his retrospectively imposed preventive detention. He also complained of a breach of Article 5 § 4 on account of the length of the review proceedings and of a violation of Article 6 § 1 owing to the alleged lack of impartiality of a judge sitting on the bench of the Regional Court that made one of the orders for his preventive detention.
The Government made a unilateral declaration in respect of the applicant’s complaints under Articles 5 § 1 and 7 § 1 regarding a period of preventive detention from 6 May 2011 till 20 June 2013 when the applicant was detained in prison.
In a judgment of 2 February 2017, a Chamber of the Court unanimously struck out the part of the application in respect of which the Government had made a unilateral declaration and found no violation of Article 5 § 1 or Article 7 § 1 in respect of the applicant’s retrospective preventive detention from 20 June 2013 onwards. It found in particular that the German courts had been justified in finding that the applicant’s mental disorder was such as to warrant his detention as a person of unsound mind and that, because his preventive detention had been ordered because of and with a view to addressing his mental condition, it could not be considered a “penalty”. Lastly, he had been held in a suitable therapeutic environment during the period in question (see also Bergmann v. Germany, 23279/14, 7 January 2016, Information Note 192).
The Chamber also held unanimously that there had been no violation of Article 5 § 4 on account of the length of the proceedings for review of the applicant’s provisional preventive detention and no violation of Article 6 § 1 on account of the alleged lack of impartiality of the Regional Court judge. The judge had allegedly warned the applicant’s female counsel to be careful if the applicant was released, but the European Court found that the alleged warning had been given immediately after the order for preventive detention was made and so amounted in substance to a confirmation of the Regional Court’s finding.
On 29 May 2017 the case was referred to the Grand Chamber at the applicant’s request.
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This summary by the Registry does not bind the Court.
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