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FIFTH
SECTION
CASE OF SCHMITZ v. GERMANY
(Application
no. 30493/04)
JUDGMENT
STRASBOURG
9 June
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 Schmitz v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann, President,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Ann
Power,
Angelika Nußberger, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30493/04) 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 Paul
H. Schmitz (“the applicant”), on 19 August 2004.
- The
applicant was represented by Ms M. Bürger-Frings, a lawyer
practising in Aachen. The German Government (“the Government”)
were represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, and by their permanent Deputy Agent, Mr
H.-J. Behrens, Ministerialrat, of the Federal Ministry of
Justice.
- The
applicant alleged that his preventive detention of an indefinite
duration violated his right to liberty under Article 5 § 1 of
the Convention and the prohibition of retrospective punishment under
Article 7 § 1 of the Convention.
- On
13 March 2007 a Chamber of the Fifth Section decided to adjourn the
examination of the application pending the outcome of the proceedings
in the case of M. v. Germany, no. 19359/04. 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 a judgment in the case of M.
v. Germany (cited above) 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 1959 and is currently detained in Aachen
Prison.
A. The applicant’s previous convictions and the
orders for his preventive detention and execution thereof
- Between
1974 and 1990 the applicant was convicted of sexual offences
including attempted rape, sexual abuse of children, sexual assault,
attempted sexual assault and dangerous assault in six judgments and
spent some eleven years in prison.
- On
14 February 1990 the Cologne Regional Court convicted the applicant
of two counts of sexual assault. It sentenced him to five years and
six months’ imprisonment and ordered his (first) preventive
detention under Article 66 § 1 of the Criminal Code (see
paragraphs 20-21 below). It found that in June and July 1989 the
applicant, acting with full criminal responsibility, had sexually
assaulted two hitchhikers whom he had taken with him in his car.
Having consulted a neurological expert, it further found that owing
to his criminal tendencies, it was very likely that the applicant
would commit further serious sexual offences comparable to those he
was found guilty of on release and was dangerous to the public.
Therefore, his preventive detention was necessary.
- The
applicant served his prison sentence until 17 January 1995 and was
then held in preventive detention until 29 March 1995, when the
preventive detention order was suspended on probation and the
applicant released.
- On
11 November 1996 the Cologne Regional Court convicted the applicant
of attempted sexual assault and falsification of a driving licence.
It sentenced him to four years and nine months’ imprisonment
and ordered his (second) preventive detention under Article 66 §
1 of the Criminal Code. The Regional Court found that in August 1995
the applicant, acting with full criminal responsibility, had again
attempted to sexually assault a hitchhiker. He had threatened her
with a gas pistol, but she had succeeded in wresting the pistol from
him and making good her escape. Having regard to the facts that the
applicant had begun to reoffend almost immediately after spending
some seventeen years in detention and that, according to the
convincing view expressed by an expert, it would take many years to
rehabilitate the applicant, if ever, the court further considered its
second order of preventive detention to be proportionate.
- On
20 June 1997 the Bonn Regional Court revoked the suspension on
probation of the applicant’s first preventive detention,
ordered in the Cologne Regional Court’s judgment of 14 February
1990, as the applicant had reoffended and had not diligently
continued his therapy.
- The
applicant served his full prison sentence imposed in the judgment of
11 November 1996 until 25 May 2000. Since 26 May 2000 the applicant
has been in preventive detention in Aachen Prison as ordered both in
the judgment of the Cologne Regional Court of 14 February 1990 and in
the judgment of that same court of 11 November 1996.
- On
5 June 2002 the Aachen Regional Court, reviewing the applicant’s
preventive detention, refused to suspend his preventive detention on
probation.
B. The proceedings at issue
1. The decision of the Aachen Regional Court
- On
11 June 2003 the applicant requested the Aachen Regional Court to
order his release from preventive detention, arguing that preventive
detention violated Article 5 § 1 of the Convention.
- On
23 July 2003 the Aachen Regional Court, examining the applicant’s
request under Article 458 § 1 of the Code of Criminal Procedure
(see paragraph 24 below), decided that his objections against the
admissibility of the execution of his preventive detention were
ill-founded. The applicant’s preventive detention, ordered by
the Cologne Regional Court in 1996 under Article 66 of the Criminal
Code, constituted lawful detention after conviction by a competent
court within the meaning of Article 5 § 1 (a) of the Convention.
2. The decision of the Cologne Court of Appeal
- On
10 September 2003 the Cologne Court of Appeal, endorsing the reasons
given by the Regional Court, dismissed the applicant’s appeal.
It added that preventive detention under Article 66 of the Criminal
Code, which was to be qualified as a measure of correction and
prevention and not as a penalty, neither violated the Convention nor
the Basic Law. Moreover, Article 67d § 3 of the Criminal Code,
in its version in force since 31 January 1998 (see paragraph 23
below), was constitutional.
3. The decision of the Federal Constitutional Court
- On
15 March 2004 the Federal Constitutional Court, referring to its
leading judgment of 5 February 2004 in the case of M. (file
no. 2 BvR 2029/01; application no. 19359/04 to this
Court), declined to consider the applicant’s constitutional
complaint (file no. 2 BvR 1838/03), in which he had complained that
his preventive detention of an indefinite duration had violated
Article 5 and Article 7 of the Convention.
C. Subsequent developments
- On
19 July 2004, 19 July 2006 and 2 July 2008 the Aachen Regional Court,
reviewing the applicant’s detention, refused to suspend the
applicant’s preventive detention on probation. It considered
that it could not be expected that the applicant, who refused to make
a therapy with an external psychologist offered to him, would not
reoffend on release.
- The
applicant was in his first preventive detention as ordered in the
judgment of the Cologne Regional Court of 14 February 1990 until
15 March 2010. From 16 March 2010 onwards, the applicant’s
preventive detention as ordered for the second time in the judgment
of the Cologne Regional Court of 11 November 1996 is executed.
II. RELEVANT DOMESTIC 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 referred to in the present case provide as follows:
A. The order of preventive detention by the sentencing
court
- The
sentencing court may, at the time of the offender’s conviction,
order his preventive detention, a so called measure of
correction and prevention, under certain circumstances in addition to
his prison sentence, a penalty, 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 of
the Criminal Code, in its version in force at the relevant time).
B. The duration of preventive detention
- Under
Article 67d § 1 of the Criminal Code, in its version in force
prior to 31 January 1998, the first placement in 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, provided 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.
- Article
458 § 1 of the Code of Criminal Procedure provides that a court
decision must be obtained if objections are raised to the execution
of a sentence.
C. Relevant case-law of the Federal Constitutional
Court
- On
4 May 2011 the Federal Constitutional Court delivered a leading
judgment concerning the retrospective prolongation of the
complainants’ preventive detention beyond the former ten-year
maximum period (compare the provisions in paragraphs 22-23 above) and
about the retrospective order of the complainants’ preventive
detention respectively (file nos. 2 BvR 2365/09, 2 BvR
740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The
Federal Constitutional Court held that all provisions on the
retrospective prolongation of preventive detention and on the
retrospective order of such detention were incompatible with the
Basic Law as they failed to comply with the constitutional protection
of legitimate expectations guaranteed in a State governed by the rule
of law, read in conjunction with the constitutional right to liberty.
- The
Federal Constitutional Court further held that all provisions of the
Criminal Code on the imposition and duration of preventive detention
at issue were incompatible with the fundamental right to liberty of
the persons in preventive detention because those provisions did not
satisfy the constitutional requirement of establishing a difference
between preventive detention and detention for serving a term of
imprisonment (Abstandsgebot). These provisions included, in
particular, Article 66 of the Criminal Code in its version in force
since 27 December 2003.
- The
Federal Constitutional Court ordered that all provisions declared
incompatible with the Basic Law remained applicable until the entry
into force of new legislation and until 31 May 2013 at the most. In
relation to detainees whose preventive detention had been prolonged
or ordered retrospectively, the courts dealing with the execution of
sentences had to examine without delay whether the persons concerned,
owing to specific circumstances relating to their person or their
conduct, were highly likely to commit the most serious crimes of
violence or sexual offences and if, additionally, they suffered from
a mental disorder. As regards the notion of mental disorder, the
Federal Constitutional Court explicitly referred to the
interpretation of the notion of “persons of unsound mind”
in Article 5 § 1 sub-paragraph (e) of the Convention made in
this Court’s case-law. If the above pre-conditions were not
met, those detainees had to be released no later than 31 December
2011. The other provisions on the imposition and duration of
preventive detention could only be further applied in the
transitional period subject to a strict review of proportionality; as
a general rule, proportionality was only respected where there was a
danger of the person concerned committing serious crimes of violence
or sexual offences if released.
- In
its judgment, the Federal Constitutional Court stressed that the fact
that the Constitution stood above the Convention in the domestic
hierarchy of norms was not an obstacle to an international and
European dialogue between the courts, but was, on the contrary, its
normative basis in view of the fact that the Constitution was to be
interpreted in a manner that was open to public international law
(völkerrechtsfreundliche Auslegung). In its reasoning,
the Federal Constitutional Court relied on the interpretation of
Article 5 and Article 7 of the Convention made by this Court in its
judgment in the case of M. v. Germany (cited above).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his preventive detention of an indefinite
duration breached his right to liberty as provided in Article 5 §
1 of the Convention, which, in so far as relevant, reads as follows:
“1. 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; ...”
- 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 (a) 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 had not been covered
by any of the sub-paragraphs (a) to (f) of Article 5 § 1 and had
thus violated that Article. In particular, preventive detention did
not occur “after conviction” within the meaning of
sub-paragraph (a) of Article 5 § 1 because it was not a sanction
for an offence committed by a perpetrator– that sanction was
the term of imprisonment imposed alone – , but a purely
preventive measure aimed at averting future offences. Moreover, there
was no sufficient causal connection between his conviction by the
Cologne Regional Court and his preventive detention, which had been
ordered by the Aachen Regional Court.
- The
Government considered that the applicant’s preventive detention
had complied with Article 5 § 1. They stressed that the present
application was not a follow-up case to that of M. v. Germany
(cited above). There was a sufficient causal connection between the
applicant’s conviction and his continued preventive detention
as required by sub-paragraph (a) of Article 5 § 1. It was true
that since 16 March 2010 the applicant was in preventive detention
for more than ten years. However, other than in the case of
M. v. Germany, the first preventive detention
ordered by the Cologne Regional Court’s judgment of 14 February
1990 was not executed for more than ten years. Since 16 March 2010
the applicant was in preventive detention as ordered for the second
time by the Cologne Regional Court’s judgment of 11 November
1996; also under the law in force prior to the changes made in 1998,
a second preventive detention order did not, however, have any
maximum duration.
- The
Government further submitted that in the proceedings here at issue,
the applicant complained only about the continuation of his
preventive detention after having spent some three years in that form
of detention. That detention was covered by his conviction by the
Cologne Regional Court of 14 February 1990 which had ordered that
measure. Referring to the Court’s findings in the case of M.
v. Germany (cited above, § 96), they considered it
irrelevant that the execution of the applicant’s preventive
detention had been ordered separately by the Aachen Regional Court.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
- The
Court refers to the fundamental principles laid down in its case law
on Article 5 § 1 of the Convention, which have been summarised
in relation to applications concerning preventive detention in its
judgment of 17 December 2009 in the case of M. v. Germany, no.
19359/04 (§§ 86 91) and in its judgment of 21
October 2010 in the case of Grosskopf v. Germany, no.
24478/03 (§§ 42-44).
- It
reiterates, in particular, that for the purposes of sub-paragraph (a)
of Article 5 § 1, the word “conviction” 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
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; and M. v. Germany,
cited above, § 87). Furthermore, the word “after” in
sub-paragraph (a) does not simply mean that the “detention”
must follow the “conviction” in point of time: There must
be a sufficient causal connection between the conviction and the
deprivation of liberty at issue (see Stafford v. the United
Kingdom [GC], no. 46295/99, § 64, ECHR 2002 IV;
Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR
2008 ...; and M. v. Germany, cited above, § 88).
(b) Application of these principles to the
present case
- The
Court notes at the outset that in the present application, the
applicant contested the compliance with the Convention of the
decisions of the domestic courts ordering the continuation of his
preventive detention in 2003/2004, that is, at a time when he was in
preventive detention for less than four years, and not his current
preventive detention as of March 2010.
- In
determining whether the applicant was deprived of his liberty in
compliance with Article 5 § 1 during that period, 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 ten-year 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).
- 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 Cologne Regional Court in February 1990 and in November 1996.
However, the Court emphasises that unlike the applicant in the M.
v. Germany case and just as the applicant in the Grosskopf
case – the applicant in the present case was not detained for a
period beyond the statutory maximum period, applicable at the time of
his offence and conviction, at the time of the domestic court
decisions here at issue.
- Moreover,
the applicant’s preventive detention at issue occurred “after”
conviction. Thus, there has been a sufficient causal connection
between his conviction and the deprivation of liberty. Both the
orders for the applicant’s preventive detention by the
sentencing Cologne Regional Court and the decision of the Aachen
Regional Court responsible for the execution of sentences, confirmed
on appeal, not to release the applicant, were based on the same
grounds, namely to prevent the applicant from committing further
serious sexual offences on release.
- The
applicant’s preventive detention was also lawful in that it was
based on a foreseeable application of Article 66 § 1 of the
Criminal Code. The Court takes note, in this connection, of the
reversal of the Federal Constitutional Court’s case-law
concerning preventive detention in its leading judgment of 4 May 2011
(see paragraphs 25–28 above). It welcomes the Federal
Constitutional Court’s approach of interpreting the provisions
of the Basic Law also in the light of the Convention and this Court’s
case-law, which demonstrates that court’s continuing commitment
to the protection of fundamental rights not only on national, but
also on European level.
- The
Court further observes that the Federal Constitutional Court, in its
said judgment, considered, inter alia, Article 66 of the
Criminal Code in its version in force since 27 December 2003 not to
comply with the right to liberty of the persons concerned. It
understands that the applicant’s preventive detention, when
reviewed in the future, will be prolonged only subject to the strict
test of proportionality as set out in the Federal Constitutional
Court’s judgment (see paragraph 27 above). It notes, however,
that the applicant’s preventive detention here at issue was
ordered and executed on the basis of a previous version of Article 66
of the Criminal Code. In any event, Article 66 of the Criminal Code
in its version in force since 27 December 2003 was not declared void
with retrospective effect, but remained applicable and thus a valid
legal basis under domestic law, in particular, for the time preceding
the Federal Constitutional Court’s judgment. Therefore, the
lawfulness of the applicant’s preventive detention at issue for
the purposes of Article 5 § 1 (a) is not called into question.
- There
has accordingly been no violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE
CONVENTION
- The
applicant further complained that his preventive detention violated
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.”
1. The parties’ submissions
- The
Government took the view that the applicant’s preventive
detention had not violated Article 7 § 1. Referring to their
submissions in relation to Article 5 § 1, they argued that,
other than in the case of M. v. Germany, the
applicant’s preventive detention at issue had not been
prolonged retrospectively beyond the ten-year maximum duration
applicable at the time of his offence to a first, but not a second
order of preventive detention.
- The
applicant argued that his preventive detention without a precise
time-limit, which the Court, in its judgment in the case of M. v.
Germany (cited above) had considered as a “penalty”
within the meaning of Article 7 § 1, had breached the
prohibition of retrospective punishment. He argued that 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 paragraphs 22-23 above),
the duration of his first preventive detention, a penalty, was
extended from a maximum period of ten years to an unlimited and thus
insufficiently defined period of time.
2. The Court’s assessment
- In
determining whether the applicant’s preventive detention in the
present case complied with Article 7 § 1, the Court refers to
its conclusion in the case of M. v. Germany (cited above, §§
124-133). In that case, it found 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 sees no
reason to depart from that finding in the present case.
- As
to the question whether a heavier penalty was imposed on the
applicant than the one that was applicable at the time the criminal
offence was committed, the Court notes that when the applicant
committed his offences in 1989, 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, meant that the applicant could be kept in preventive detention
for ten years at the most (see also paragraph 22 above). It was only
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 23 above), which abolished that
maximum duration with immediate effect and thus allowed also a first
order of preventive detention to be executed for an indefinite
period.
- However,
at the time of the impugned domestic court decisions in 2003/2004,
the applicant had not yet served ten years in his first preventive
detention (and, in addition, following another offence a second
preventive detention order was made against him, to which the
ten-year maximum period never applied, see paragraph 22 above).
Therefore, the applicant cannot claim to be the victim, for the
purposes of Article 34 of the Convention, of a prolongation of his
preventive detention with retrospective effect, under a law enacted
after he had committed his offence (compare also Meyer-Falk v.
Germany (dec.), no. 47678/99, 30 March 2000).
- Consequently,
this part of the application must be dismissed as incompatible
ratione personae with the provisions of the Convention in
accordance with Article 35 §§ 3 (a) and 4.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant’s preventive detention of an indefinite duration
under Article 5 § 1 of the Convention admissible and the
remainder of the application inadmissible;
- Holds that there has been no violation of
Article 5 § 1 of the Convention.
Done in English, and notified in writing on 9 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
