Information Note on the Court’s case-law No. 125
December 2009
M. v. Germany - 19359/04
Judgment 17.12.2009 [Section V]
Article 5
Article 5-1
Deprivation of liberty
Lawful arrest or detention
Applicant’s continued placement in preventive detention beyond the maximum period authorised at the time of his placement: violation
Article 7
Article 7-1
Heavier penalty
Retroactivity
Retrospective extension of preventive detention from a maximum of ten years to an unlimited period of time: violation
Facts – In 1986 the applicant was convicted of attempted murder and robbery and sentenced to five years’ imprisonment. In addition, the trial court ordered his placement in preventive detention, a measure considered necessary in view of the applicant’s strong propensity to commit offences which seriously damaged his victims’ physical integrity. He had already been convicted and imprisoned on numerous occasions, notably for attempted murder, theft, assault and blackmail. In the court’s opinion, he was liable to commit spontaneous acts of violence and was a danger to the public. The applicant finished serving his prison sentence in August 1991 and has been in preventive detention ever since. In April 2001 a court refused to release him on licence and ordered that he be kept in preventive detention beyond 8 September 2001, the date the maximum ten-year period previously authorised for such detention was due to expire. In making that order the court applied the Criminal Code as amended by a law which had entered into force in January 1998. It stated that the amended provision was applicable also to prisoners who had been placed in preventive detention prior to the law’s entry into force and added that, on account of the gravity of the applicant’s criminal record and the likelihood of his committing further offences, his continued placement in preventive detention was not disproportionate. The court of appeal confirmed that the applicant’s dangerousness necessitated his continued preventive detention and added that such detention was not contrary to the prohibition of retrospective provisions in the criminal law. The applicant lodged an unsuccessful constitutional complaint. The Federal Constitutional Court held, in particular, that the abolition of the maximum period of detention, and the application of this measure to criminals who had been placed in preventive detention prior to the entry into force of the new legislation and had not yet finished serving their sentences, were compatible with the Constitution. It also considered that the retrospective application of the amended provision of the Criminal Code was not disproportionate.
Law – Article 5 § 1: The Court confirmed that the applicant’s preventive detention before the expiry of the ten-year period had resulted from his “conviction” by the sentencing court in 1986 and was therefore covered by Article 5 § 1 (a). The Court, however, found that there was no sufficient causal connection between his conviction and his continued deprivation of liberty beyond the period of ten years in preventive detention, which had been made possible only by the subsequent change in the law in 1998. The applicant’s continued detention had been justified by the courts responsible for the execution of sentences with reference to the risk that the applicant might commit further serious offences – similar to those of which he had previously been convicted – if released. These potential further offences were not, however, sufficiently concrete and specific, as required by the Court’s case-law as regards the place and time of their commission and the victims, and did not, therefore, fall within the ambit of Article 5 § 1 (c). The domestic courts had not based their decisions to further detain the applicant on the ground that he was of unsound mind. Therefore, his detention could not be justified under Article 5 § 1 (e) either. In sum, the applicant’s preventive detention beyond the ten-year period had not been justified under any of the sub-paragraphs of Article 5 § 1.
Conclusion: violation (unanimously).
Article 7 § 1: The Court had to determine whether the applicant’s preventive detention constituted a “penalty” within the meaning of this provision. Under German law, such a measure was not considered a penalty to which the absolute ban on retrospective punishment applied, but rather a measure of correction and prevention aimed at protecting the public from a dangerous offender. However, just like a prison sentence, preventive detention entailed a deprivation of liberty. Persons subject to preventive detention were detained in ordinary prisons, albeit in separate wings. Minor alterations to the detention regime compared to that of an ordinary prisoner serving his sentence, including privileges such as detainees’ right to wear their own clothes and to further equip their more comfortable prison cells, could not mask the fact that there was no substantial difference between the execution of a prison sentence and that of a preventive-detention order. There was currently no sufficient psychological support specifically aimed at prisoners in preventive detention to secure the prevention of offences by the persons concerned.The Court could not therefore subscribe to the Government’s argument that preventive detention served a purely preventive, and no punitive, purpose. Pursuant to the Criminal Code, preventive-detention orders could be made only against persons who had repeatedly been found guilty of criminal offences of a certain gravity. Given its unlimited duration, preventive detention might well be understood as constituting an additional punishment and entailed a clear deterrent element. Courts belonging to the criminal-justice system were involved in making and implementing orders for preventive detention. The suspension of preventive detention on probation was subject to a court’s finding that there was no danger that the detainee would commit further serious offences, a condition which could be difficult to fulfil. This measure appeared, therefore, to be among the most severe – if not the most severe – which could be imposed under the German Criminal Code. In view of the foregoing, the Court concluded that preventive detention under the German Criminal Code was to be qualified as a “penalty” for the purposes of Article 7 § 1 of the Convention. The Court was further unconvinced by the Government’s argument that the extension of the applicant’s detention merely concerned the execution of the penalty imposed on the applicant by the sentencing court. Given that at the time the applicant committed the offence he could have been kept in preventive detention only for a maximum of ten years, the extension had constituted an additional penalty which had been imposed on him retrospectively, under a law enacted after he had committed his offence.
Conclusion: violation (unanimously).
Article 41: EUR 50,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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