[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF MAUTES v. GERMANY
(Application
no. 20008/07)
JUDGMENT
STRASBOURG
13
January 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mautes v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20008/07) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Manuel Mautes (“the applicant”), on 24 April 2007.
- The
applicant was represented by Mr R. Breuer, a lawyer practising in
Aachen. The German Government (“the Government”) were
represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the Federal Ministry of Justice.
- The
applicant alleged that his preventive detention since
4 January
1997 was incompatible with his right to liberty under Article 5
§
1 of the Convention. Moreover, the retrospective extension of his
preventive detention from a period of ten years, which had been the
maximum for such detention under the legal provisions applicable at
the time of his offence, to an unlimited period of time, violated the
prohibition of retrospective punishment under Article 7 § 1 of
the Convention.
- On
22 January 2009 the President of the Fifth Section decided to give
notice of the application to the Government, requested them to submit
information on changes in the applicant's detention regime and
adjourned the examination of the application until the judgment in
the case of
M. v. Germany, no. 19359/04, has become final.
It was also decided to rule on the admissibility and merits of the
application at the same time
(Article 29 § 1). In view of
the fact that the judgment of 17 December 2009 in the case of M.
v. Germany became final on 10 May 2010, the President decided on
20 May 2010 that the proceedings in the application at issue be
resumed and granted priority to the application (Rule 41 of the Rules
of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and is currently in Aachen Prison.
A. The applicant's previous convictions and the order
for his preventive detention and its execution
- Since
1981 the applicant has been convicted seven times of offences
including assault and dangerous assault, theft, joint serious
robbery, coercion and sexual coercion. He was notably found guilty in
1984 of assaulting in a humiliating manner and over a period of
several days another man locked up in the same cell, and of forcing
him to take part in oral sex.
- On
22 July 1991 the Duisburg Regional Court convicted the applicant of
dangerous assault combined with joint coercion, with sexual coercion,
with joint extortion and coercion and with attempted sexual assault
committed in 1990. It sentenced him to six years' imprisonment and
ordered his preventive detention under Article 66 § 1 of the
Criminal Code
(see paragraphs 22-23 below). The Regional Court
found that the applicant, partly acting jointly with others and
acting with diminished criminal responsibility due to drug
consumption, had assaulted a man who had allowed the applicant to
share his apartment using objects including shoes, belts, scissors
and cigarettes, had forced him to let the applicant masturbate into
his mouth, to eat rubbish and grass and to withdraw money from his
account for the applicant. Moreover, the applicant had beaten up
another prisoner locked up in the same cell several times and had
attempted to force the other man to perform sex acts on him. Having
consulted a medical expert, the Regional Court found that the
applicant, acting with full criminal responsibility, had a tendency
to commit offences against the physical integrity and property of
others by violence and was therefore dangerous to the public.
- The
applicant served his full prison sentence. He was then placed in
preventive detention, for the first time, on 4 January 1997; he had
thus served ten years in preventive detention by 3 January 2007.
The
continuation of the applicant's preventive detention was ordered by
the Arnsberg Regional Court in 1999, 2002 and 2004. Since March 2006,
the applicant's preventive detention is executed in Aachen Prison.
B. The proceedings at issue
1. The decision of the Arnsberg Regional Court
- On
25 October 2006 the Arnsberg Regional Court ordered the continuation
of the applicant's preventive detention beyond ten years.
It
found that there was still a risk that the applicant, owing to his
criminal tendencies, might commit serious offences resulting in
considerable psychological or physical harm to the victims if
released (Article 67d § 3 of the Criminal Code; see paragraph 27
below).
- Relying
on the report submitted by a psychiatric expert, M., the Regional
Court found that on account of his psychotherapeutic treatment, the
applicant had made progress in the course of his detention. He no
longer attempted to solve conflicts by violence and now abused
alcohol and drugs less than before. He now had a stable heterosexual
identity and felt guilty about his offences. However, he still lacked
social skills, including the capacity to resolve conflicts himself,
and had no social contacts outside prison. He was therefore liable to
commit further thefts, robberies and dangerous assaults if released.
He first had to be prepared for release through relaxations in the
conditions of his detention.
2. The decision of the Hamm Court of Appeal
- By
a decision of 19 December 2006, which the applicant received on
8
January 2007, the Hamm Court of Appeal, endorsing the reasons given
by the Regional Court, dismissed the applicant's appeal. It added
that, contrary to the applicant's view, his continued preventive
detention for a period exceeding ten years on the basis of Article
67d of the Criminal Code, as amended in 1998, was constitutional.
3. The decision of the Federal Constitutional Court
- On
31 January 2007 the applicant lodged a constitutional complaint with
the Federal Constitutional Court. He argued that the continuation of
his preventive detention beyond ten years, resulting from the
application of the amended Article 67d § 3 of the Criminal Code,
which had entered into force after he had committed his offences,
violated his right to liberty and the prohibition of retrospective
punishment under Article 2 § 2 and Article 103 § 2 of the
Basic Law and Article 5 § 1 and Article 7 § 1 of the
Convention.
- On
20 February 2007 the Federal Constitutional Court, without giving
further reasons, declined to consider the applicant's constitutional
complaint (file no. 2 BvR 270/07).
C. Subsequent developments
- On
16 October 2008 the Aachen Regional Court ordered the continuation of
the applicant's preventive detention as, owing to his criminal
tendencies, he was still liable to commit serious offences resulting
in considerable psychological or physical harm to the victims.
The
psychiatric expert which the court had consulted and the conclusions
of whom the court had endorsed, had found that the applicant no
longer suffered from a serious personality disorder and that there
was no longer a high risk that the applicant committed further sexual
offences. However, prior to a successful completion of relaxations in
the conditions of his detention, the applicant was still liable to
commit serious offences.
- On
1 June 2010 the Aachen Regional Court refused to declare the
applicant's preventive detention terminated in view of the Court's
findings in the case of M. v. Germany. It found that the
courts responsible for the execution of sentences had to apply
Article 67d § 3 of the Criminal Code, being the law in force
which could not be interpreted in compliance with the Convention, and
that it was for the legislator to execute the Court's judgment.
- On
30 July 2010 the Cologne Court of Appeal dismissed the applicant's
appeal against the Regional Court's decision of 1 June 2010,
endorsing the reasons given by the Regional Court and referring to
the reasons given in its own decision of 14 July 2010 (file no. 2 Ws
428/10;
see paragraph 30 below).
- On
13 September 2010 the Federal Constitutional Court refused to
terminate the applicant's preventive detention by way of an interim
order (file no. 2 BvR 1940/10). It found that the applicant's
constitutional complaint was not manifestly ill-founded and would
have to be examined on the merits. Weighing the consequences of
granting an interim order against those of refusing such an order, it
found that the public interest in security outweighed the applicant's
interest in his liberty, having regard to the seriousness of the
offences the applicant was liable to commit if released.
- The
applicant is currently still in preventive detention.
II. RELEVANT DOMESTIC LAW AND COMPARATIVE 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, 17 December 2009).
The
provisions relevant to the present case can be summarised as follows:
A. The order of preventive detention by the sentencing
court
- The
German Criminal Code distinguishes between penalties (Strafen)
and so-called measures of correction and prevention (Maßregeln
der Besserung und Sicherung) to deal with unlawful acts.
Preventive detention (Article 66 et seq. of the Criminal Code)
is classified as a measure of correction and prevention. The purpose
of such measures is to rehabilitate dangerous offenders or to protect
the public from them. They may in certain circumstances be ordered
for offenders in addition to their punishment (compare Articles 63 et
seq.). They must, however, be proportionate to the gravity of the
offences committed by, or to be expected from, the defendants as well
as to their dangerousness (Article 62 of the Criminal Code).
- The
temporal applicability of provisions of the Criminal Code depends on
whether they relate to penalties or measures of correction and
prevention. The penalty is determined by the law which is in force at
the time of the act (Article 2 § 1 of the Criminal Code); if the
law in force on completion of the act is amended before the court's
judgment, the more lenient law applies (Article 2 § 3). On the
other hand, decisions on measures of correction and prevention are to
be based on the law in force at the time of the decision unless the
law provides otherwise (Article 2 § 6).
- The
sentencing court may, at the time of the offender's conviction, order
his preventive detention under certain circumstances in addition to
his prison sentence if the offender has been shown to be dangerous to
the public (Article 66 of the Criminal Code).
- In
particular, the sentencing court orders preventive detention in
addition to the penalty if someone is sentenced for an intentional
offence to at least two years' imprisonment and if the following
further conditions are satisfied. Firstly, the perpetrator must have
been sentenced twice already, to at least one year's imprisonment in
each case, for intentional offences committed prior to the new
offence. Secondly, the perpetrator must previously have served a
prison sentence or must have been detained pursuant to a measure of
correction and prevention for at least two years. Thirdly, a
comprehensive assessment of the perpetrator and his acts must reveal
that, owing to his propensity to commit serious offences, notably
those which seriously harm their victims physically or mentally or
which cause serious economic damage, the perpetrator presents a
danger to the general public (see Article 66 § 1).
B. The order for execution of the placement in
preventive detention
- Article
67c of the Criminal Code governs orders for the preventive detention
of convicted persons which are not executed immediately after the
judgment ordering them becomes final. Paragraph 1 of the Article
provides that if a term of imprisonment is executed prior to a
simultaneously ordered placement in preventive detention, the court
responsible for the execution of sentences (that is, a special
Chamber of the Regional Court composed of three professional judges,
see sections 78a and 78b(1)(1) of the Court Organisation Act) must
review, before completion of the prison term, whether the person's
preventive detention is still necessary in view of its objective. If
that is not the case, it suspends on probation the execution of the
preventive detention order; supervision of the person's conduct
(Führungsaufsicht) commences with suspension.
C. Judicial review and duration of preventive detention
- Pursuant
to Article 67e of the Criminal Code the court (i.e. the
chamber responsible for the execution of sentences) may review at any
time whether the further execution of the preventive detention order
should be suspended on probation. It is obliged to do so within fixed
time-limits (paragraph 1 of Article 67e). For persons in preventive
detention, this
time-limit is two years (paragraph 2 of Article
67e).
- Under
Article 67d § 1 of the Criminal Code, in its version in force
prior to 31 January 1998, the first period of preventive detention
may not exceed ten years. If the maximum duration has expired, the
detainee shall be released (Article 67d § 3).
- Article
67d of the Criminal Code was amended by the Combating of Sexual
Offences and Other Dangerous Offences Act of 26 January 1998, which
entered into force on 31 January 1998. Article 67d § 3, in its
amended version, provides that if a person has spent ten years in
preventive detention, the court shall declare the measure terminated
(only) if there is no danger that the detainee will, owing to his
criminal tendencies, commit serious offences resulting in
considerable psychological or physical harm to the victims.
Termination shall automatically entail supervision of the conduct of
the offender. The former maximum duration of a first period of
preventive detention was abolished. Pursuant to section 1a § 3
of the Introductory Act to the Criminal Code, the amended version of
Article 67d § 3 of the Criminal Code was to be applied without
any restriction ratione temporis.
D. The application of the Court's findings in the M.
v. Germany case by the domestic courts
- By
a decision of 12 May 2010 (file no. 4 StR 577/09) the Federal Court
of Justice (fourth senate), in a decision concerning a retrospective
order of preventive detention (nachträgliche
Sicherungsverwahrung), found that the
Criminal Code was to be and could be interpreted so as to comply with
Article 7 § 1 of the Convention as interpreted by this Court in
its judgment in M. v. Germany,
no. 19359/04. Under Article 2 § 6 of the Criminal Code (see
paragraph 21 above), decisions on measures of correction and
prevention were to be based on the law in force at the time of the
court's decision unless the law provided otherwise. Article 7 §
1 of the Convention, in its interpretation by this Court, was such a
law which provided otherwise as the Court had considered that
preventive detention was to be qualified as a penalty for the
purposes of Article 7 to which the prohibition of retrospective
punishment applied (the fifth senate of the Federal Court of Justice,
in its decision of 21 July 2010,
file no. 5 StR 60/10, disagreed
with the fourth senate on that point in relation to a different
provision on retrospective preventive detention). Therefore, court
decisions concerning orders of preventive detention had to be based
on the law in force at the time of the offence.
- Referring,
in particular, to these findings of the Federal Court of Justice,
several Courts of Appeal found in cases comparable, as regards the
temporal course of events, to the M. v.
Germany case that the abolition of the
maximum period of ten years laid down in Article 67d § 1 of the
Criminal Code in its version in force before 31 January 1998 could
not be effected retrospectively and that this maximum period
therefore still applied to preventive detention ordered in relation
to offences committed prior to that date. As a consequence, these
courts declared terminated the preventive detention of the detainees
concerned whose first period of preventive detention had been
executed beyond that maximum period and ordered their release (see,
in particular, Frankfurt am Main Court of Appeal, decision of 24 June
2010, file no. 3 Ws 485/10; Hamm Court of Appeal, decision of
6
July 2010, file no. 4 Ws 157/10; Karlsruhe Court of Appeal, decision
of 15 July 2010, file no. 2 Ws 458/09; and Schleswig-Holstein Court
of Appeal, decision of 15 July 2010, file no. 1 Ws 267/10).
- On
the contrary, several Courts of Appeal considered that the Court's
findings in the case of M. v. Germany
could not be applied at present by the domestic courts responsible
for the execution of sentences as the Criminal Code as it stood did
not permit its interpretation in compliance with Articles 5 and 7 of
the Convention. Section 1a § 3 of the Introductory Act to the
Criminal Code had expressly stipulated that the abolition of the
maximum duration of ten years for a first period of preventive
detention also applied to persons who had committed the offences in
question prior to the entry into force of that abolition and had
thereby unambiguously authorized the application of the amended law
with retrospective effect.
It was therefore for the legislator to
execute the Court's judgment in the
M.
case. These Courts of Appeal accordingly did not terminate the
preventive detention of the persons concerned (see, in particular,
Celle Court of Appeal, decision of 25 May 2010, file no. 2 Ws
169-170/10; Stuttgart Court of Appeal, decision of 1 June 2010, file
no. 1 Ws 57/10; Koblenz Court of Appeal, decision of 7 June 2010,
file no. 1 Ws 108/10; Nuremberg Court of Appeal, decision of 24 June
2010,
file no. 1 Ws 315/10; and Cologne Court of Appeal, decision
of
14 July 2010, file no. 2 Ws 428/10).
- Several
of these Courts of Appeal subsequently submitted such cases to the
Federal Court of Justice for a preliminary ruling under a new
provision of the Court Organisation Act (section 121 § 2
no. 3) in force since 30 July 2010, which is aimed at securing a
uniform case-law
of the German courts on that issue (see, for
instance, Koblenz Court of Appeal, decision of 30 September 2010,
file no. 1 Ws 108/10).
On 9 November 2010 the fifth senate of the
Federal Court of Justice
decided to consult notably the fourth
senate whether it intended to uphold its view on that point, which
differed from that of the fifth senate
(file no. 5 StR 394/10 and
others). Unlike the fourth senate in its decision of 12 May 2010
(file no. 4 StR 577/09; see paragraph 28 above), the fifth senate
considered that in cases parallel to that of M., the detainees
concerned were not to be released automatically without a further
examination on the merits. However, if applied retrospectively,
Article 67d § 3 of the Criminal Code had to be interpreted
restrictively in the light of the judgment in M. v. Germany.
Preventive detention could from now on only be executed beyond the
ten-year point in those parallel cases if specific circumstances in
the detainee's personality or conduct disclosed an extreme risk of
the most serious violent or sexual offences.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his preventive detention, which lasted
already for more than ten years, was incompatible with his right to
liberty as provided in Article 5 § 1 of the Convention, which,
in so far as relevant, reads as follows:
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court; ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants; ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant argued that his preventive detention since
4 January
1997 violated Article 5 § 1 because such detention, being a
preventive measure, was not covered by any of the sub-paragraphs (a)
to (f) of Article 5 § 1. In particular, there was no sufficient
causal connection between his conviction in 1991 and his preventive
detention, which had been ordered subsequently by the courts
responsible for the execution of sentences.
- As
regards the compliance of the applicant's continued detention with
Article 5 § 1, the Government referred to their observations
made on that issue in the case of M. v. Germany, no. 19359/04.
They took the view that in terms of the temporal course of events,
the present application was a parallel case to the application of M.
v. Germany. At the time of the applicant's conviction in 1991,
the first order of preventive detention made against him was limited
by law to a maximum duration of ten years. Following the abolition of
the ten-year maximum period in 1998, the domestic courts ordered in
the proceedings at issue that the applicant had to remain in
preventive detention also after 3 January 2007, when he had served
ten years in his first preventive detention. The courts responsible
for the execution of sentences had considered that there was still a
risk that the applicant, owing to his criminal tendencies, might
commit serious offences resulting in considerable psychological or
physical harm to the victims if released. Relying on the Court's
findings in § 96 of the M. v. Germany judgment, the
Government stressed that, in any event, the applicant's preventive
detention prior to the ten-year point had been covered by
sub-paragraph (a) of Article 5 § 1.
2. The Court's assessment
a. Recapitulation of the relevant
principles
- The
Court reiterates the fundamental principles laid down in its
case-law on Article 5 § 1 of the Convention, which have been
summarised in its judgment of 17 December 2009 in the case of M.
v. Germany, no. 19359/04, as follows:
“86. Article 5 § 1 sub-paragraphs
(a) to (f) contain an exhaustive list of permissible grounds for
deprivation of liberty, and no deprivation of liberty will be lawful
unless it falls within one of those grounds (see, inter alia,
Guzzardi v. Italy,
6 November 1980, § 96, Series A
no. 39; Witold Litwa v. Poland, no. 26629/95, § 49,
ECHR 2000 III; and Saadi v. the United Kingdom [GC],
no. 13229/03, § 43, ECHR 2008 ...). ...
87. For the purposes of sub-paragraph (a) of
Article 5 § 1, the word “conviction”, having regard
to the French text (“condamnation”), has to be
understood as signifying both a finding of guilt after it has been
established in accordance with the law that there has been an offence
(see Guzzardi, cited above, § 100), and the imposition of
a penalty or other measure involving deprivation of liberty (see Van
Droogenbroeck v. Belgium, 24 June 1982, § 35,
Series A no. 50).
88. Furthermore, the word “after”
in sub-paragraph (a) does not simply mean that the “detention”
must follow the “conviction” in point of time: in
addition, the “detention” must result from, follow and
depend upon or occur by virtue of the “conviction” (see
Van Droogenbroeck, cited above, § 35). In short, there
must be a sufficient causal connection between the conviction and the
deprivation of liberty at issue (see Weeks v. the United Kingdom,
2 March 1987, § 42, Series A no. 114; Stafford v. the United
Kingdom [GC], no. 46295/99, § 64, ECHR 2002 IV;
Waite v. the United Kingdom, no. 53236/99, § 65, 10
December 2002; and Kafkaris v. Cyprus [GC], no. 21906/04,
§ 117, ECHR 2008 ...). ...
89. Furthermore, under sub-paragraph (c) of
Article 5 § 1, detention of a person may be justified “when
it is reasonably considered necessary to prevent his committing an
offence”. However, that ground of detention is not adapted to a
policy of general prevention directed against an individual or a
category of individuals who present a danger on account of their
continuing propensity to crime. It does no more than afford the
Contracting States a means of preventing a concrete and specific
offence (see Guzzardi, cited above, § 102; compare also
Eriksen, cited above, § 86). This can be seen both from
the use of the singular (“an offence”) and from the
object of Article 5, namely to ensure that no one should be
dispossessed of his liberty in an arbitrary fashion (see Guzzardi,
ibid.).”
b. Application of these principles to the
present case
- The
Court has to determine, in the light of the foregoing principles,
whether the applicant, during his preventive detention, was deprived
of his liberty in accordance with one of the sub-paragraphs (a) to
(f) of Article 5 § 1.
- That
detention was justified under sub-paragraph (a) of Article 5 § 1
if it occurred “after conviction”, in other words if
there was a sufficient causal connection between the applicant's
conviction and his continuing deprivation of liberty since 4 January
1997, when, having fully served his sentence, he was placed in
preventive detention.
- The
Court considers that the applicant's “conviction”, for
the purposes of Article 5 § 1 (a), is only his criminal
conviction by the sentencing Duisburg Regional Court in 1991, which
alone found him guilty of an offence (amongst others, dangerous
assault combined with sexual coercion), and which ordered his
preventive detention in addition to a prison sentence. The subsequent
decisions of the courts responsible for the execution of sentences to
retain the applicant in preventive detention did not, on the
contrary, satisfy the said requirement of “conviction” as
they no longer involved a finding of guilt of a (new) offence
(compare, mutatis mutandis, M. v. Germany, cited above,
§§ 95-96).
- As
regards the applicant's preventive detention up to the former
ten-year maximum duration under Article 67d § 1 of the Criminal
Code, in its version in force prior to 31 January 1998 (see paragraph
26 above), the Court refers to its findings in its recent judgment of
17 December 2009 in the case of M. v. Germany (cited above).
In that judgment, it found that
Mr M.'s preventive
detention, which, as in the present case, was ordered by the
sentencing court under Article 66 § 1 of the Criminal Code, was
covered by sub-paragraph (a) of Article 5 § 1 in so far as it
had not been prolonged beyond the statutory maximum period applicable
at the time of that applicant's offence and conviction (see ibid.,
§§ 96 and 97-105). The Court was satisfied that Mr M.'s
initial preventive detention within that maximum period occurred
“after conviction” by the sentencing court for the
purposes of Article 5 § 1 (a). The Court took note of the fact
that preventive detention was fixed with regard to the danger the
person concerned presented to the public – and thus served
(also) a preventive purpose. It considered, however, that an order of
preventive detention under Article 66 § 1 of the Criminal Code
was nevertheless always dependent on and ordered together with a
sentencing court's finding that the person concerned was guilty of an
offence and thus resulted from a “conviction” (ibid.,
§ 96).
- Having
regard to these findings in its judgment in the application of M.
v. Germany, from which it sees no reason to depart, the Court
considers that the preventive detention under Article 66 of the
Criminal Code of the applicant in the present case was based on his
“conviction”, for the purposes of Article 5 § 1 (a),
by the Duisburg Regional Court in 1991 up to the
ten-year point
(that is, until 3 January 2007).
- The
Court further observes that at the time of the applicant's conviction
in 1991, the order for his preventive detention, read in conjunction
with Article 67d § 1 of the Criminal Code in the version then in
force (see paragraph 26 above), meant that the applicant, against
whom preventive detention was ordered for the first time, could be
kept in preventive detention for a maximum period of ten years. Thus,
had it not been for the amendment of Article 67d of the Criminal Code
in 1998
(see paragraph 27 above), which was declared applicable
also to preventive detention orders which had been made – as
had the order against the applicant – prior to the entry into
force of that amended provision (section 1a § 3 of the
Introductory Act to the Criminal Code; see paragraph 27 above),
the applicant would have been released when ten years of preventive
detention had expired, irrespective of whether he was still
considered dangerous to the public.
- The
present application is therefore a follow-up case, in terms of the
temporal course of events, to the application of M. v. Germany
(cited above), and the Court sees no reason to depart from its
findings in that judgment. The Court thus considers, as it has done
in the case of
M. v. Germany, (cited above, §§
92-101), that there was not a sufficient causal connection between
the applicant's conviction by the sentencing court and his continued
deprivation of liberty beyond the period of ten years in preventive
detention. His continuing detention after 3 January 2007 was
therefore not justified under sub-paragraph (a) of Article 5 §
1.
- The
Court further notes that the applicant's preventive detention beyond
the ten-year point was also not justified under any of the other
sub paragraphs of Article 5 § 1. In particular, the
applicant's preventive detention ordered under Article 66 § 1 of
the Criminal Code
(see paragraphs 7 and 22-23 above) was not
justified as detention “reasonably considered necessary to
prevent his committing an offence” under sub-paragraph (c) of
that provision (compare, mutatis mutandis,
M. v.
Germany, cited above, § 102). Likewise, the Court is not
satisfied that the domestic courts, which were called upon to
determine whether the applicant was liable to reoffend owing to his
criminal tendencies, based their decision to retain the applicant in
preventive detention, executed in prison, on the ground that he
suffered from a serious mental disorder and was thus “of
unsound mind” within the meaning of sub-paragraph (e) of
Article 5 § 1.
- There
has accordingly been a violation of Article 5 § 1 of the
Convention in so far as the applicant has been retained in preventive
detention after 3 January 2007.
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
- The
applicant complained that the retrospective prolongation of his
preventive detention from a maximum period of ten years to an
unlimited period breached his right not to have a heavier penalty
imposed on him than the one applicable at the time of his offence as
provided in Article 7 § 1 of the Convention, which reads as
follows:
“No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a
criminal offence under national or international law at the time when
it was committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the criminal offence was committed.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant submitted that preventive detention was to be classified as
a penalty. The retrospective extension of his first period of
preventive detention from a maximum duration of ten years to an
unlimited period of time owing to the amendment in 1998 of Article
67d §§ 1 and 3 of the Criminal Code, read in conjunction
with section 1a § 3 of the Introductory Act to the Criminal Code
(see paragraph 27 above), had therefore violated his right not to
have a heavier penalty imposed than the one applicable at the time of
his offence guaranteed by Article 7 § 1 of the Convention.
- The
Government took the view that in terms of the temporal course of
events, the present application was a parallel case to the
application of
M. v. Germany, no. 19359/04. They referred
to their observations made in relation to Article 5 in the present
application and to those made in relation to Article 7 in the case of
M. v. Germany.
2. The Court's assessment
a. Recapitulation of the relevant
principles
- The
Court reiterates the relevant principles laid down in its case-law on
Article 7 of the Convention, which have been summarised in its
judgment of 17 December 2009 in the case of M. v. Germany
(cited above), as follows:
“118. Article 7 embodies, inter
alia, the principle that only the law can define a crime and
prescribe a penalty (nullum crimen, nulla poena sine lege).
While it prohibits in particular the retrospective application of the
criminal law to an accused's disadvantage (see Kokkinakis v.
Greece, 25 May 1993, § 52, Series A no. 260 A) or
extending the scope of existing offences to acts which previously
were not criminal offences, it also lays down the principle that the
criminal law must not be extensively construed to an accused's
detriment, for instance by analogy (see Uttley v. the United
Kingdom (dec.), no. 36946/03, 29 November 2005, and Achour v.
France [GC], no. 67335/01, § 41, ECHR 2006 IV).
...
120. The concept of “penalty” in
Article 7 is autonomous in scope.
To render the protection
afforded by Article 7 effective the Court must remain free to go
behind appearances and assess for itself whether a particular measure
amounts in substance to a “penalty” within the meaning of
this provision (see Welch v. the United Kingdom, 9 February
1995, § 27, Series A no. 307 A; Jamil v. France, 8
June 1995, § 30, Series A no. 317 B; and Uttley,
cited above). The wording of Article 7 paragraph 1, second sentence,
indicates that the starting-point in any assessment of the existence
of a penalty is whether the measure in question is imposed following
conviction for a “criminal offence”. Other relevant
factors are the characterisation of the measure under domestic law,
its nature and purpose, the procedures involved in its making and
implementation, and its severity (see Welch, cited above, §
28; Jamil, cited above, § 31; Adamson v. the United
Kingdom (dec.), no. 42293/98,
26 January 1999; Van der
Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 XV;
and Kafkaris, cited above, § 142). The severity of the
measure is not, however, in itself decisive, since, for instance,
many non-penal measures of a preventive nature may have a substantial
impact on the person concerned (see Welch, cited above, §
32; compare also Van der Velden, cited above).”
b. Application of these principles to the
present case
- The
Court is thus called upon to determine, in the light of the foregoing
principles, whether the extension of the applicant's preventive
detention from a maximum of ten years to an unlimited period of time,
as a result of which the applicant was kept in preventive detention
beyond the initial ten-year point, violated the prohibition of
retrospective penalties under Article 7 § 1, second sentence.
- The
Court observes that at the time the applicant committed his offences
in 1990, a preventive detention order made by a sentencing court for
the first time, read in conjunction with Article 67d § 1 of the
Criminal Code in the version then in force (see paragraph 26 above),
meant that the applicant could be kept in preventive detention for
ten years at the most. Based on the subsequent amendment in 1998 of
Article 67d of the Criminal Code, read in conjunction with section 1a
§ 3 of the Introductory Act to the Criminal Code (see paragraph
27 above), which abolished that maximum duration with immediate
effect, the courts responsible for the execution of sentences then
ordered, in the proceedings here at issue, the applicant's continued
preventive detention beyond the ten-year point. Thus, the applicant's
preventive detention – as that of the applicant in the case of
M. v. Germany – was prolonged with retrospective
effect, under a law enacted after the applicant had committed his
offence.
- The
Court further refers to its conclusion in the case of
M. v.
Germany (cited above, §§ 124-133) that preventive
detention under the German Criminal Code, having notably regard to
the facts that it is ordered by the criminal courts following a
conviction for a criminal offence and that it entails a deprivation
of liberty which, following the change in the law in 1998, no longer
has any maximum duration, is to be qualified as a “penalty”
for the purposes of the second sentence of Article 7 § 1 of the
Convention. It again sees no reason to depart from that finding in
the present case.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 7 § 1 of the
Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Having regard to the circumstances of the case and the
parties' arguments, the Court considers it necessary to determine
what consequences may be drawn from Article 46 of the Convention for
the respondent State.
- Article 46 of the Convention, in so far as relevant,
provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.”
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties' submissions
- The
applicant submitted that he should have been released immediately
when the Court's judgment in the case of M. v. Germany became
final on 10 May 2010.
- The
Government argued that it was for the domestic courts to decide on
the termination of the applicant's preventive detention, which was
still executed, having regard to the Court's findings in the case of
M. v. Germany. Referring to recent decisions taken by the
Schleswig-Holstein, Karlsruhe, Frankfurt am Main and Hamm Courts
of Appeal (see paragraphs 28-29 above), they took the view that it
was possible for the courts responsible for the execution of
sentences to interpret German law in compliance with Articles 5 and 7
of the Convention.
B. The Court's assessment
- The
Court reiterates that, in accordance with Article 46 of the
Convention, the finding of a violation imposes on the respondent
State a legal obligation not just to pay those concerned the sums
awarded by way of just satisfaction under Article 41, but also to
select, subject to supervision by the Committee of Ministers, the
general and/or, if appropriate, individual measures to be adopted in
their domestic legal order to put an end to the violation found by
the Court and to redress so far as possible the effects (see, inter
alia, Broniowski v. Poland [GC], no. 31443/96, § 192,
ECHR 2004 V; and Sürmeli v. Germany [GC], no.
75529/01, § 137, ECHR 2006 VII).
- Furthermore,
it follows from the Convention, and from Article 1 in particular,
that in ratifying the Convention the Contracting States undertake to
ensure that their domestic legislation is compatible with it.
Consequently, it is for the respondent State to remove any obstacles
in its domestic legal system that might prevent the applicant's
situation from being adequately redressed (see Maestri v. Italy
[GC], no. 39748/98, § 47, ECHR 2004 I; and Assanidze v.
Georgia [GC], no. 71503/01, § 198, ECHR 2004 II).
- The
Court further reiterates that its judgments are essentially
declaratory in nature and that, in general, it is primarily for the
State concerned to choose, subject to supervision by the Committee of
Ministers, the means to be used in its domestic legal order in order
to discharge its obligation under Article 46 of the Convention,
provided that such means are compatible with the conclusions set out
in the Court's judgment
(see, among other authorities, Scozzari
and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §
249, ECHR 2000 VIII; Öcalan v. Turkey [GC],
no. 46221/99, § 210, ECHR 2005 IV; and Fatullayev
v. Azerbaijan, no. 40984/07, § 173, 22 April 2010).
- However,
exceptionally, with a view to helping the respondent State to fulfil
its obligations under Article 46, the Court will seek to indicate the
type of measure that might be taken in order to put an end to a
violation it has found to exist. In certain cases, the nature of the
violation found may be such as to leave no real choice as to the
measures required to remedy it and the Court may decide to indicate
only one such measure, such as, for instance, securing an applicant's
immediate release (see, in particular, Assanidze, cited above,
§§ 202-203; and Fatullayev, cited above,
§§
174-177).
- The
Court observes in the present case that following its judgment in the
case of M. v. Germany, the Aachen Regional Court and the
Cologne Court of Appeal considered that the applicant's preventive
detention was not to be declared terminated in view of this Court's
judgment as it was impossible for the German courts to interpret the
Criminal Code in compliance with the Convention (see paragraphs 15
and 16 above; several Courts of Appeal took the same view, see
paragraphs 30-31 above). As a result, they prolonged the applicant's
detention despite the fact that they were aware that it was in breach
of the Convention.
- The
Court would recall that the subsidiary nature of the supervisory
mechanism of complaint to the Court articulated in Articles 1, 35 §
1 and 13 of the Convention and reiterated in the Interlaken
Declaration of
19 February 2010 (ibid., PP 6 and part B.,
§ 4 of the Action Plan) lays the primary responsibility for
implementing and enforcing the rights and freedoms of the Convention
on the national authorities. It notes that several Courts of Appeal,
as well as the Federal Court of Justice, on the contrary, have
considered it possible to interpret German law in accordance with the
Convention (see paragraphs 28-29 above) and that the Government in
the present proceedings agreed with that view. In the light of the
foregoing, the Court does not consider it necessary, at present, to
indicate any specific or general measures to the respondent State
which are called for in the execution of this judgment. It would,
however, urge the national authorities, and in particular the courts,
to assume their responsibility for implementing and enforcing
speedily the applicant's right to liberty, a core right guaranteed by
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 307,752 euros (EUR) in respect of loss of earnings.
He argued that, had he been able to work outside prison during the
time he spent in preventive detention, he would have earned some
EUR 337,500 (EUR 100 per day), from which the salary and pocket
money paid in prison by the State (some EUR 29,748) had to be
deducted.
The applicant further claimed at least EUR 93,575 in
respect of
non-pecuniary damage suffered as a result of his
preventive detention since 4 January 1997, that is, EUR 19 per day of
preventive detention.
He requested in person that all payments be
made into his lawyer's account.
- The
Government considered that the applicant's claim for compensation for
loss of earnings was wholly unsubstantiated as he had failed to
specify his professional qualifications and the kind of work he could
have carried out outside prison. As for the applicant's claim in
respect of non-pecuniary damage, they left it to the Court's
discretion to fix an appropriate amount. They stressed, however, that
the applicant could claim compensation for potential damage only in
so far as it had arisen after
3 January 2007, when he was in
preventive detention for more than ten years.
- As
for the applicant's claim concerning pecuniary damage having arisen
from a loss of earnings the Court, having regard to the material
before it, considers that no clear causal connection between the
Convention violations found and the applicant's loss of estimated
earnings has been established. It therefore rejects the applicant's
claim in this respect.
- As
for the applicant's claim in respect of non-pecuniary damage, the
Court takes into consideration that the applicant has been detained
in breach of the Convention since 4 January 2007, that is, for almost
four years at present, and that his preventive detention continued
also long after the Court's judgment in the case of M. v. Germany
became final on
10 May 2010. This must have caused him
non-pecuniary damage such as distress and frustration, which cannot
be compensated solely by the finding of a Convention violation.
Having regard to all the circumstances of the case and making its
assessment on an equitable basis, it awards the applicant EUR 25,000
under this head, plus any tax that may be chargeable. Having regard
to the request made by the applicant in person, it orders this sum,
awarded to the applicant, to be paid into his lawyer's fiduciary bank
account.
B. Costs and expenses
- The
applicant did not submit a claim for the reimbursement of costs and
expenses incurred in the proceedings before the domestic courts and
before the Court. The Court therefore does not make an award under
this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention in so far as the applicant has been
retained in preventive detention after
3 January 2007;
- Holds that there has been a violation of Article
7 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 25,000
(twenty-five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be paid into his lawyer's
fiduciary bank account;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
