Information Note on the Court’s case-law No. 142
June 2011
Mork v. Germany - 31047/04 and 43386/08
Judgment 9.6.2011 [Section V]
Article 5
Article 5-1
Deprivation of liberty
Lawful arrest or detention
Indefinite preventive detention ordered by sentencing court: no violation
[This summary also covers the judgment in the case of Schmitz v. Germany, no. 30493/04, 9 June 2011]
Facts – Both applicants were convicted of serious offences for which they received prison sentences. In view of their records and the risk of their reoffending, the sentencing courts also made orders for them to be held in indefinite preventive detention once they had served their sentences, in accordance with Article 66 § 1 of the German Criminal Code as worded prior to amendments that entered into force on 27 December 2003. In their application to the European Court, the applicants complained that their preventive detention had infringed their right to liberty.
Law – Article 5 § 1: The Court saw no reason to depart from its findings in the case of M. v. Germany* that preventive detention ordered by the sentencing court was covered by sub-paragraph (a) of Article 5 § 1 if it was not extended beyond the statutory ten-year maximum period permitted at the time of the offence and conviction. Neither applicant had been in preventive detention beyond that maximum period. There was a sufficient causal connection between the applicants’ conviction and their deprivation of liberty, with both the orders for their preventive detention and the decisions not to release them being based on the same grounds, namely to prevent further serious re-offending.
Further, their preventive detention was lawful in that it was based on a foreseeable application of the Criminal Code. In that connection, the Court took note of the Federal Constitutional Court’s leading judgment of 4 May 2011 in which it held that all provisions of the Criminal Code on the retrospective extension of preventive detention and on the retrospective ordering of such detention were incompatible with the Basic Law. The Court welcomed the Constitutional Court’s approach of interpreting the provisions of the Basic Law also in the light of the Convention and the Court’s case-law, so demonstrating a continuing commitment to the protection of fundamental rights not only at national but also at European level.
The Court further noted the Constitutional Court’s finding in that judgment that the current provisions on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty to the extent that they did not satisfy the constitutional requirement of establishing a difference between preventive detention and a prison sentence. However, the Constitutional Court’s judgment had not declared void the relevant provisions with retrospective effect, and the applicants’ preventive detention had in any event been ordered and executed on the basis of a previous version of the Criminal Code. The Court understood that, when reviewed in the future, the applicants’ preventive detention would be prolonged only subject to the strict test of proportionality set out in the Federal Constitutional Court’s judgment. For all these reasons, the lawfulness of their preventive detention was not called into question.
Conclusion: no violation (unanimously).
* M. v. Germany, no. 19359/04, 17 December 2009, Information Note no. 125.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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