BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF
B. v. GERMANY
(Application
no. 61272/09)
JUDGMENT
STRASBOURG
19 April
2012
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 B. v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61272/09) 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 B.
(“the applicant”), on 18 November 2009. On 2
February 2011 the President of the Section acceded to the applicant’s
request not to have his name disclosed (Rule 47 § 3 of the
Rules of Court).
- The
applicant, who had been granted legal aid, was initially represented
before the Court by Ms U. Groos and was then represented by Mr J.
Oelbermann, both lawyers practising in Berlin. The German Government
(“the Government”) were represented by their Agents,
Mrs A. Wittling-Vogel, Ministerialdirigentin, and Mr
H.-J. Behrens, Ministerialrat, of the Federal Ministry of
Justice.
- The
applicant alleged, in particular, that his preventive detention,
which had been ordered retrospectively after he had fully served his
prison sentence, had violated his right to liberty as protected by
Article 5 § 1 of the Convention.
- On
23 August 2010 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and is currently detained in Straubing
Prison.
A. The applicant’s convictions and the execution
of his sentence
- On
14 February 2000 the Coburg Regional Court convicted the applicant of
sexual assault and rape of a hitchhiker with the aid of weapons,
committed in August 1999, and sentenced him to nine years’
imprisonment.
- The
Regional Court had regard to the fact that the applicant had
previously been convicted of sexual offences committed against
acquaintances of his on several occasions, partly under the influence
of alcohol, namely of two counts of attempted rape in 1978, of rape
in 1983 and of sexual assault and another rape in 1989.
- Having
consulted a psychiatric and a psychological expert, the Regional
Court considered that the applicant had not suffered from a
pathological personality disorder and that his criminal
responsibility had not been diminished at the time of the offence. As
the applicant had confirmed in the hearing that he was ready to
undergo therapy, both experts considered that the applicant was not
dangerous for the public as a therapy was likely to prove successful.
The court, in its judgment, did not examine the question whether the
applicant should be placed in preventive detention.
- On
28 June 2000 the Federal Court of Justice, while qualifying the
applicant’s acts as rape with the aid of weapons alone, upheld
the Regional Court’s judgment.
- Following
his conviction in 2000, the applicant confirmed his willingness to
undergo therapy in prison. He was admitted to the social therapeutic
department of Straubing Prison in November 2005 and initially
participated with motivation in the therapy offered. In July 2006,
having learnt that the Federal Court of Justice had considered that a
co detainee’s preventive detention could not be ordered
retrospectively only owing to the latter’s refusal to continue
therapy, the applicant discontinued the therapy, considering that he
did no longer make any progress. According to the treating
therapists, the applicant was unwilling to look into his offences.
Thereupon, he was retransferred to an ordinary department of
Straubing Prison.
- The
applicant served his full sentence in Straubing Prison until 10 July
2008. Thereafter, he was provisionally placed in preventive detention
in that same prison on the basis of a detention order issued on
2 July 2008 pending the competent courts’ decision whether
or not his retrospective preventive detention was to be ordered.
B. The proceedings at issue
1. The proceedings before the Coburg Regional Court
- On
8 October 2008 the Coburg Regional Court, relying on Article 66b
§ 2 of the Criminal Code (see paragraphs 33-35 below), ordered
the applicant’s preventive detention retrospectively
(nachträgliche Sicherungsverwahrung).
- The
Coburg Regional Court found that, in accordance with Article 66b
§ 2 of the Criminal Code, a chamber of that same court had
convicted the applicant on 14 February 2000 of an offence against
sexual self-determination, namely rape, and had imposed a sentence
exceeding five years’ imprisonment.
- Moreover,
following the applicant’s conviction, new facts within the
meaning of Article 66b §§ 2 and 1 of the Criminal Code had
emerged which disclosed the applicant’s considerable
dangerousness to the public. The applicant had given up the therapy
addressing his sexual offences which he had been ready to undergo at
the time of his conviction and which, according to the experts heard
at that time, would have had good prospects of success.
- Having
heard two psychiatric experts, K. and S., whose findings the court
endorsed, the Regional Court further considered that a comprehensive
assessment of the applicant, his offences and his development during
the execution of his sentence revealed that it was very likely that
he would again commit sexual offences resulting in considerable
psychological or physical harm to the victims. The applicant had a
propensity to commit serious sexual offences. Ordering his preventive
detention was proportionate as it was the only suitable way to
prevent further offences. In particular, an individual therapy
for sexual offenders outside prison which the applicant had declared
to be ready to undergo, was not sufficient to protect the public from
him.
- In
his report, expert K. had diagnosed the applicant with a personality
disorder with narcissistic, paranoiac and dissocial elements. In the
expert’s view, there was a 95 to 100 per cent risk that the
applicant would commit further serious sexual offences if released,
as well as a very high risk that the applicant might kill future
victims in order to evade punishment. Expert S. had assessed the risk
that the applicant, whom he diagnosed with a dissocial personality
with narcissistic elements, would commit further serious sexual
offences at around 50 per cent.
2. The proceedings before the Federal Court of Justice
- On
17 March 2009 the Federal Court of Justice dismissed the applicant’s
appeal on points of law as ill-founded. The decision was served on
the applicant’s counsel on 30 March 2009.
3. The proceedings before the Federal Constitutional
Court
- On
30 April 2009 the applicant, represented by counsel, lodged a
constitutional complaint with the Federal Constitutional Court. He
argued, in particular, that the decision of the criminal courts to
order his preventive detention retrospectively violated his right to
liberty under Article 2 § 2 of the Basic Law and Article 5
§ 1 of the Convention and was disproportionate in view of the
failure to offer him adequate therapy in due time. He claimed, in
particular, that the principle of proportionality enshrined in the
rule of law was violated as there were insufficient means in
preventive detention to offer detainees adequate treatment. He stated
in that context that it was dishonourable for a State governed by the
rule of law to expose persons to a risk of live-long imprisonment by
retrospective changes in the law and to deprive them at the same time
of the necessary means enabling them to regain their liberty.
- On
13 May 2009 the Federal Constitutional Court, without giving reasons,
declined to consider the applicant’s constitutional complaint
(file no. 2 BvR 957/09). The decision was served on the
applicant’s counsel on 18 May 2009.
C. The execution in practice of the preventive
detention order against the applicant
- The
judgment of the Coburg Regional Court having become final, the
applicant was remanded in preventive detention in a separate wing of
Straubing Prison for persons in preventive detention. He worked with
success as a toolmaker in prison until October 2009 when he was
suspended from work after having insulted a member of the prison
staff. He does not receive any visits or letters in prison.
- The
prison staff’s attempts to motivate the applicant to take up a
social group therapy again were to no avail. Since January 2010 at
the latest the applicant has declared to be ready to take up an
individual therapy. However, the therapists of the prison’s
social-therapeutic department did not consider an individual therapy
necessary in the applicant’s case.
D. Subsequent developments
1. Proceedings under the Bavarian (Mentally Ill
Persons’) Placement Act
- On
4 October 2010 the city of Straubing informed the applicant that,
having consulted a psychiatric expert, U., it had decided not to
apply for the applicant’s placement in a psychiatric hospital
under the Bavarian (Mentally Ill Persons’) Placement Act (see
paragraph 38 below). The expert, having examined the applicant in
person, had diagnosed the applicant with an accentuated personality
with dissocial and narcissistic elements and had found that he had
previously abused alcohol, without having been addicted to alcohol,
but had not been drinking since his imprisonment. He had concluded
that the applicant’s free will in relation to behaviour
constituting a risk for public security and order was not restricted
as a result of his condition. Despite the fact that there was a risk
that the applicant would commit further serious offences, the
conditions for his placement in a psychiatric hospital under Article
1 § 1 of the Bavarian (Mentally Ill Persons’) Placement
Act were therefore not met.
2. Proceedings concerning the lawfulness of the
execution of the applicant’s preventive detention
- On
4 November 2010 the Regensburg Regional Court dismissed the objection
made by the applicant by reference to the Court’s judgment in
the case of M. v. Germany, no. 19359/04, to the lawfulness of
the execution of his preventive detention. On 6 December 2010 the
Nuremberg Court of Appeal dismissed the applicant’s appeal.
3. Proceedings for review of the applicant’s
preventive detention
- On
7 December 2010 the applicant lodged a request under Article 67e
of the Criminal Code (see paragraph 36 below) with the Regensburg
Regional Court, requesting his release.
- On
25 November 2011 the Regensburg Regional Court declared the
applicant’s preventive detention ordered by the Coburg Regional
Court on 8 October 2008 terminated and ordered the supervision
of his conduct. It had regard to the report dated 28 May 2011 of
psychiatric expert L. it had consulted. The latter had found that the
applicant suffered from a dissocial personality disorder and had
displayed a problematic consumption of alcohol, but there was no
proof for an abuse of alcohol entailing physical or mental damage.
There was a high risk (of more than 50 per cent) that the applicant
would commit serious sexual offences if released. In the expert’s
view, his dissocial personality disorder amounted to a mental
disorder within the meaning of section 1 of the Therapy Detention Act
and contributed considerably to the applicant’s dangerousness.
The expert had proposed that the applicant should receive an
individual therapy to prepare him for further therapeutic measures,
preferably in a psychiatric hospital.
- The
Regensburg Regional Court, having regard to that report as well as to
those drawn up in the proceedings under the Therapy Detention Act
(see paragraph 29 below), found that the applicant suffered from a
mental disorder within the meaning of section 1 § 1 of the
Therapy Detention Act, but that it was not highly likely that he
would commit the most serious crimes of violence or sexual offences
as required by the Federal Constitutional Court in its judgment dated
4 May 2011 (see paragraph 46 below).
- On
29 December 2011 the Nuremberg Court of Appeal quashed the Regional
Court’s decision and ordered the continued execution of the
applicant’s preventive detention. It considered that the
applicant did not only suffer from a mental disorder within the
meaning of section 1 § 1 of the Therapy Detention Act, but that
it was also highly likely that he would commit the most serious
crimes of violence or sexual offences if released.
4. Proceedings under the Therapy Detention Act
- On
3 January 2011 the Straubing Prison authorities lodged a request with
the Regensburg Regional Court to order the applicant’s
detention under the Therapy Detention Act (see paragraph 39 below).
- Contrary
to expert L. (see paragraph 25 above), psychiatric experts P. and La.
consulted in these proceedings concluded that the applicant did not
suffer from a “mental disorder” for the purposes of the
Therapy Detention Act. There was a risk that he would reoffend if
released, but he did not suffer from a dissocial personality disorder
of a psycho-pathological nature. The proceedings are apparently still
pending.
II. RELEVANT DOMESTIC 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). A
summary of the provisions of the Basic Law governing the right to
liberty (Article 2 § 2) and the ban on retrospective
application of criminal laws (Article 103 § 2) can also be
found in that judgment (ibid., §§ 57 and 61). The
provisions referred to in the present case provide as follows:
A. The order of preventive detention
1. Preventive detention orders by the sentencing court
- Article
66 of the Criminal Code governs orders for a person’s
preventive detention made by the sentencing court when finding the
person guilty of an offence. That 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 a danger to the public.
- 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).
2. Retrospective preventive detention orders
- The
Retrospective Preventive Detention Act (Gesetz zur Einführung
der nachträglichen Sicherungsverwahrung) of 23 July 2004,
which entered into force on 29 July 2004, inserted Article 66b §§
1 and 2 into the Criminal Code; the provision was amended by an Act
of 13 April 2007. Article 66b §§ 1 and 2 was
aimed at preventing the release of persons whose particular
dangerousness came to light only during the execution of a prison
sentence imposed on them (see German Federal Parliament documents
(BTDrucks), no. 15/2887, p. 12).
- The
said Article, in so far as relevant and in its version applicable at
the relevant time, provided:
Article 66b Retrospective order for
placement in preventive detention
“1. If prior to the end of enforcement
of a term of imprisonment imposed on conviction for a felony ...
evidence comes to light which indicates that the convicted person
presents a significant danger to the general public, the court may
order preventive detention retrospectively if ...
2. If evidence of facts of the kind listed in
paragraph 1 comes to light after a prison sentence of a term of not
less than five years has been imposed for one or more felonies
against life or limb, personal liberty, sexual self-determination or
..., the court may order preventive detention retrospectively if a
comprehensive assessment of the convicted person, his offence or
offences and, in addition, his development during the execution of
his sentence revealed that it was very likely that he would again
commit serious offences resulting in considerable psychological or
physical harm to the victims.”
- By
the Reform of Preventive Detention Act (Gesetz zur Neuordnung des
Rechts der Sicherungsverwahrung) of 22 December 2010, which
entered into force on 1 January 2011, Article 66b §§ 1 and
2 of the Criminal Code were abolished for offences committed after
the entry into force of that Act.
B. Judicial review and duration of preventive detention
- Pursuant
to Article 67e of the Criminal Code, the court (that is, 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 and a measure of probation applied or should be
declared terminated. 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).
C. The detention of mentally ill persons
- The
detention of mentally ill persons is provided for, first of all, in
the Criminal Code as a measure of correction and prevention if the
detention is ordered in relation to an unlawful act committed by the
person concerned. Article 63 of the Criminal Code provides that if
someone commits an unlawful act without criminal responsibility or
with diminished criminal responsibility, the court will order his
placement – without any maximum duration – in a
psychiatric hospital if a comprehensive assessment of the defendant
and his acts reveals that, as a result of his condition, he can be
expected to commit serious unlawful acts and that he is therefore a
danger to the general public.
- Secondly,
pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the
Placement in an Institution of Mentally Ill Persons and Their Care of
5 April 1992 (Bavarian (Mentally Ill Persons’) Placement
Act – Bayerisches Gesetz über die Unterbringung
psychisch Kranker und deren Betreuung) a court may order a
person’s placement in a psychiatric hospital at the request of
the authorities of a town or county if the person concerned is
mentally ill and thereby poses a severe threat to public security and
order. Such an order may only be executed as long as no measure under
Article 63 of the Criminal Code has been taken (section 1 § 2 of
the said Act).
- Furthermore,
on 1 January 2011, following the Court’s judgment in the case
of M. v. Germany (cited above), the Act on Therapy and
Detention of Mentally Disturbed Violent Offenders (Therapy Detention
Act – Gesetz zur Therapierung und Unterbringung psychisch
gestörter Gewalttäter) entered into force. Under
sections 1 § 1 and 4 of that Act, the civil sections of the
Regional Court may order the placement in a suitable institution of
persons who may no longer be kept in preventive detention in view of
the prohibition of retrospective aggravations in relation to
preventive detention. Such a therapy detention may be ordered if the
person concerned has been found guilty by final judgment of certain
serious offences for which preventive detention may be ordered under
Article 66 § 3 of the Criminal Code. The person must further
suffer from a mental disorder owing to which it is highly likely that
he will considerably impair the life, physical integrity, personal
liberty or sexual self-determination of another person. The person’s
detention must be necessary for the protection of the public.
D. Case-law of the Federal Constitutional Court
1. Previous case-law on retrospective preventive
detention
- In
its decision of 23 August 2006, a chamber of three judges of the
Federal Constitutional Court considered that Article 66b § 2 of
the Criminal Code, which authorised the courts to order preventive
detention retrospectively, was compatible with the Basic Law (file
no. 2 BvR 226/06).
- The
Federal Constitutional Court, relying on its well-established
case-law, found that the said legislative provision did not violate
the ban on the retrospective application of criminal laws imposed by
Article 103 § 2 of the Basic Law. That ban did not cover
preventive detention, which was not a penalty to compensate for
guilt, but a purely preventive measure aimed at protecting the public
from an offender. Likewise, Article 66b § 2 of the Criminal Code
was in conformity with the protection of legitimate expectations
guaranteed in a State governed by the rule of law. The legislator’s
decision that the paramount public interest in an effective
protection of the public from very dangerous offenders outweighed the
reliance of the convicted offender on the fact that the law would not
be changed to his detriment so as to allow his continued detention
was compatible with the Basic Law.
- The
Federal Constitutional Court further considered that Article 66b §
2 of the Criminal Code did not violate the right to liberty of the
person concerned as protected by Article 2 § 2 of the Basic Law.
The legislator was authorised under that provision of the Basic Law
to deprive of his liberty a person who had to be expected to commit
offences against the life or limb or the liberty of the citizens,
having regard to the principle of proportionality. As Article 66b §
2 of the Criminal Code applied only in very exceptional cases, that
provision had to be considered as a proportionate restriction on the
right to liberty.
- In
the circumstances of the case before it, the Federal Constitutional
Court found, however, that the application of Article 66b § 2 of
the Criminal Code and the lower courts’ order of preventive
detention against the complainant had breached the complainant’s
right to liberty because the restrictive requirements of Article 66b
§ 2 of the Criminal Code had clearly not been met in his case.
2. Recent case-law on preventive detention
- 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 and also concerning the retrospective order for a
complainant’s preventive detention under Article 66b § 2
of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10,
2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its
previous position, the Federal Constitutional Court held that all
provisions on the retrospective prolongation of preventive detention
and on the retrospective ordering 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 the relevant
provisions of the Criminal Code on the imposition and duration of
preventive detention were incompatible with the fundamental right to
liberty of persons in preventive detention. It found that 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 latest. In
relation to detainees whose preventive detention had been prolonged
or ordered retrospectively under Article 66b § 2 of the Criminal
Code, 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 within the meaning of section 1 § 1 of the Therapy
Detention Act (see paragraph 39 above). 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 (see §§ 138 and
143-156 of the Federal Constitutional Court’s judgment). If the
above pre-conditions were not met, those detainees had to be released
no later than 31 December 2011.
- 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; see §§ 137 ss. of the Federal
Constitutional Court’s judgment). It stressed, in particular,
that the constitutional requirement of establishing a difference
between preventive detention and detention for serving a term of
imprisonment and the principles laid down in Article 7 of the
Convention required an individualised and intensified offer of
therapy and care to the persons concerned. In line with the Court’s
findings in the case of M. v. Germany (cited above,
§ 129), it was necessary to provide a high level of care by a
team of multi-disciplinary staff and to offer the detainees an
individualised therapy if the standard therapies available in the
institution did not have prospects of success (see § 113 of the
Federal Constitutional Court’s judgment).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his retrospective preventive detention
violated 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; ...
(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
- In
their further observations dated 14 June 2011 the Government objected
for the first time that the applicant had failed to exhaust domestic
remedies as required by Article 35 § 1 of the Convention. They
argued that in its leading judgment of 4 May 2011 on preventive
detention (see paragraphs 44-47 above), the Federal Constitutional
Court had introduced a new domestic remedy for review of the ongoing
preventive detention of persons concerned by that judgment. In
particular, in cases in which preventive detention had been ordered
retrospectively, the courts could only order the continuation of that
detention under restrictive conditions. The preventive detention of
the persons concerned could only be prolonged if, owing to specific
circumstances relating to their person or their conduct, it was
highly likely that they would commit the most serious crimes of
violence or sexual offences and if, additionally, they suffered from
a mental disorder within the meaning of section 1 of the Therapy
Detention Act and sub-paragraph (e) of Article 5 § 1. If that
was not the case, the detainees had to be released no later than 31
December 2011. The applicant had been obliged to exhaust that new
domestic remedy.
- The
Government further took the view that the applicant could no longer
claim to be the victim of a violation of his Convention rights. In
its above-mentioned judgment, the Federal Constitutional Court had
implemented the findings the Court had made in its judgments on
German preventive detention. The Convention violations found have
thus partly been remedied by the Federal Constitutional Court in its
transitional rules, and will partly be remedied as soon as possible.
- The
applicant contested that view, stating that his situation had
remained unchanged also after the Federal Constitutional Court’s
judgment of 4 May 2011.
- The
Court notes that the applicant in the present case complained about
his retrospective preventive detention since 11 July 2008, resulting
from the Coburg Regional Court’s judgment of 8 October 2008,
confirmed on appeal and by the Federal Constitutional Court. Any
remedies introduced subsequently by the Federal Constitutional
Court’s judgment of 4 May 2011 for review of the applicant’s
continued preventive detention are not, therefore, capable of
affording redress to the applicant in relation to the prior period of
preventive detention here at issue.
- The
Court has examined the Government’s above objections in similar
cases and has rejected them (see, in particular, O.H. v.
Germany, no. 4646/08, §§ 62-69,
24 November 2011). It does not see any reason to come to a
different conclusion in the present case. Consequently, the
Government’s objection that the applicant failed to exhaust
domestic remedies and lost his victim status must be rejected.
- 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
(a) The applicant
- The
applicant claimed that his continued detention after he had fully
served his prison sentence had violated Article 5 § 1.
- In
the applicant’s submission, his preventive detention was not
covered by any of the sub-paragraphs (a) to (f) of Article 5 §
1. Referring to the Court’s findings in its judgment of 17
December 2009 in the case of M. v. Germany (cited above),
and to those in the case of Haidn v. Germany, (no. 6587/04,
13 January 2011), he argued, in particular, that there was no
causal connection, as required by sub-paragraph (a) of Article 5 §
1, between his preventive detention and his conviction in 2000 by the
Coburg Regional Court. That court did not order – and under the
applicable legal provisions could not have ordered – his
preventive detention. At the time of his offence in 1999 and of his
conviction in 2000, it would also not have been possible to make a
preventive detention order retrospectively. Article 66b had only
been inserted in the Criminal Code afterwards, in July 2004.
- Moreover,
in the applicant’s view, the judgment of the Coburg Regional
Court of October 2008 did not constitute a “conviction”
for the purposes of Article 5 § 1 (a). That court did not find
him guilty of a new offence, but imposed another penalty, namely
preventive detention, for the offence of which he had already been
found guilty and for which he had been sentenced to a long term of
imprisonment in 2000.
- The
applicant further argued that his detention was also not justified as
that of a person “of unsound mind” within the meaning of
sub paragraph (e) of Article 5 § 1 as he did not
suffer from a “true mental disorder” within the meaning
of the Court’s case-law. He stressed that at no point in time,
his detention in a psychiatric hospital had been ordered and that his
preventive detention had always been executed in an ordinary prison.
The applicant also contested that there had been sufficient offers of
therapies to him in Straubing Prison. In particular, he had not been
offered an adequate individual therapy.
(b) The Government
- In
the Government’s view, the applicant’s preventive
detention complied with Article 5 § 1 of the Convention.
- The
Government generally expressed doubts whether a narrow interpretation
of sub-paragraphs (a) to (e) of Article 5 § 1 was necessary to
protect individuals from arbitrary detention. That interpretation had
to take into account the States’ duty, originating in human
rights and, in particular, in Articles 2 and 3 of the Convention, to
protect victims from further offences.
- The
applicant’s detention had been justified under sub-paragraph
(a) of Article 5 § 1 as detention “after conviction”
by a competent court. In particular, the fact that Article 66b §
2 of the Criminal Code, on which the applicant’s preventive
detention had been based, had only been inserted in the Criminal Code
in 2004 did not break the causal connection between his conviction
and the deprivation of liberty. It was true that the Coburg Regional
Court convicted the applicant in February 2000, that is, prior to the
entry into force of the said provision. However, the fresh
proceedings in which the applicant’s preventive detention had
been ordered retrospectively in 2008/2009 had to be qualified as akin
to a reopening of the proceedings in relation to the assessment of
the dangerousness of the perpetrator. New facts had been
necessary which had only then disclosed the applicant’s
dangerousness. Therefore, the judgment of the Coburg Regional Court
of October 2008 ordering the applicant’s preventive detention
retrospectively had to be qualified as a “conviction”,
for the purposes of Article 5 § 1 (a).
- In
the Government’s submission, the applicant’s preventive
detention had also been justified under sub-paragraph (e) of Article
5 § 1. The applicant had to be considered as being “of
unsound mind” and as an “alcoholic”. Even though
the applicant had not acted with diminished criminal responsibility
at the time of his act, he suffered from a personality disorder with
narcissistic, paranoiac and dissocial elements and had partly
committed his previous offences while being drunk. This had been
confirmed by two experts in the proceedings at issue. This
personality disorder had to be qualified as a “true mental
disorder” for the purposes of the Court’s case-law as
established, in particular, in Winterwerp v. the Netherlands
(24 October 1979, Series A no. 33), and the applicant thus had to be
considered as being of unsound mind. Furthermore, the applicant was
an “alcoholic” within the meaning of sub-paragraph (e) of
Article 5 § 1. These factors warranted his compulsory
confinement for the protection of the public.
- The
Government further stressed that the fact that a person had committed
an offence with full criminal responsibility did not warrant the
conclusion that the person did not suffer from a mental disorder for
the purposes of sub-paragraph (e) of Article 5 § 1 and section 1
of the Therapy Detention Act (see paragraph 39 above). A person may
have been fully capable of appreciating the wrongfulness of his act
and of acting accordingly at the time of his offence and thus have
been criminally responsible. This did not, however, exclude that
owing to a serious mental disorder, that person was very liable to
commit serious violent or sexual offences in the future. It had not
been necessary to place the applicant, who had been unwilling to
undergo a therapy, in a psychiatric hospital. For persons who
were unwilling to undergo therapy, psychiatric hospitals were not a
suitable institution for the purposes of the said provision. Those
persons would disturb the proper working of those institutions to the
detriment of other patients. The applicant further had not qualified
for the individual therapy he had requested. The Government further
noted that the applicant had refused to complete the therapy offered
to him in prison.
- The
Government also took the view that the applicant had been deprived of
his liberty lawfully and in accordance with a procedure prescribed by
law. His detention had complied with Article 66b § 2 of the
Criminal Code. Moreover, given the very high risk confirmed by the
experts that the applicant would commit further serious sexual
offences, possibly including the killing of his victims, on his
release, the State had had a positive obligation under Articles 2 and
3 of the Convention to protect potential victims from the applicant.
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 relating to preventive detention
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 ...). ...”
- The
Court further reiterates that the term “persons of unsound
mind” in sub-paragraph (e) of Article 5 § 1 does not lend
itself to precise definition since its meaning is continually
evolving as research in psychiatry progresses (see Winterwerp v.
the Netherlands, 24 October 1979, § 37, Series A no. 33, and
Rakevich v. Russia, no. 58973/00, § 26, 28 October 2003).
An individual cannot be deprived of his liberty as being of “unsound
mind” unless the following three minimum conditions are
satisfied: firstly, he must reliably be shown to be of unsound mind,
that is, a true mental disorder must be established before a
competent authority on the basis of objective medical expertise;
secondly, the mental disorder must be of a kind or degree warranting
compulsory confinement; thirdly, the validity of continued
confinement depends upon the persistence of such a disorder (see
Winterwerp, cited above, § 39; Varbanov v. Bulgaria,
no. 31365/96, §§ 45 and 47, ECHR 2000 X; Hutchison
Reid v. the United Kingdom, no. 50272/99, § 48, ECHR
2003 IV; Shtukaturov v. Russia, no. 44009/05, § 114,
27 March 2008; and Kallweit v. Germany, no. 17792/07,
§ 45, 13 January 2011).
- In
deciding whether an individual should be detained as a person “of
unsound mind”, the national authorities are to be recognised as
having a certain discretion since it is in the first place for the
national authorities to evaluate the evidence adduced before them in
a particular case; the Court’s task is to review under the
Convention the decisions of those authorities (see Winterwerp,
cited above, § 40; and H.L. v. the United Kingdom,
no. 45508/99, § 98, ECHR 2004 IX). The relevant time
at which a person must be reliably established to be of unsound mind,
for the requirements of sub-paragraph (e) of Article 5 § 1, is
the date of the adoption of the measure depriving that person of his
liberty as a result of that condition (compare Luberti v. Italy,
23 February 1984, § 28, Series A no. 75).
- Furthermore,
there must be some relationship between the ground of permitted
deprivation of liberty relied on and the place and conditions of
detention. In principle, the “detention” of a person as a
mental health patient will only be “lawful” for the
purposes of sub-paragraph (e) of paragraph 1 if effected in a
hospital, clinic or other appropriate institution (see Ashingdane
v. the United Kingdom, 28 May 1985, § 44, Series A no. 93;
Aerts v. Belgium, 30 July 1998, § 46, Reports
1998 V; Hutchison Reid, cited above, § 49; Brand
v. the Netherlands, no. 49902/99, § 62, 11 May 2004; and
Haidn v. Germany, no. 6587/04, § 78,
13 January 2011).
- As to the meaning which is to be given to the term
“alcoholics” in the light of the object and purpose of
Article 5 § 1 (e) of the Convention, the Court reiterates the
following. The object and purpose of this provision cannot be
interpreted as only allowing the detention of “alcoholics”
in the limited sense of persons in a clinical state of “alcoholism”.
Persons who are not medically diagnosed as “alcoholics”,
but whose conduct and behaviour under the influence of alcohol pose a
threat to public order or themselves, can be taken into custody for
the protection of the public or their own interests, such as their
health or personal safety. It does
not, however, permit the detention of an individual merely because of
his alcohol intake (see Witold Litwa, cited
above, §§ 61-62; and Hilda Hafsteinsdóttir
v. Iceland, no. 40905/98, § 42, 8 June 2004).
(b) Application of these principles to the
present case
(i) Sub-paragraph (a) of Article 5 §
1
- The
Court is therefore called upon to determine whether the applicant’s
preventive detention at issue was justified under any of the
sub paragraphs (a) to (f) of Article 5 § 1. In the
Government’s submission, that detention was covered by
sub-paragraph (a) of that provision as having occurred “after
conviction”. They argued, in particular, that the judgment of
the Coburg Regional Court of October 2008 ordering the applicant’s
preventive detention retrospectively was a “conviction”
for the purposes of the said provision.
- The
Court refers to its well-established case-law in this connection
according to which “conviction” under sub-paragraph (a)
of Article 5 § 1 signifies a finding of guilt in respect of an
offence and the imposition of a penalty or other measure involving
deprivation of liberty (see paragraph 66 above). As has been
clarified in the Court’s judgment in the case of M. v. Germany
(cited above, §§ 95-96) and again in the case of Haidn
(cited above, §§ 84-88), it is
only the judgment of a sentencing court finding a person guilty of an
offence which meets the requirements of a “conviction”
for the purposes of the said provision. By contrast, the decision of
a court responsible for the execution of sentences to retain the
person concerned in detention does not satisfy the requirement of a
“conviction” for the purposes of Article 5 § 1 (a)
as it no longer involves a finding that the person is guilty of a
(new) offence. The same holds true for a judgment ordering a person’s
preventive detention retrospectively in relation to a previous
offence that person had already been sentenced for.
- Thus,
in the present case, it is only the judgment of the Coburg Regional
Court of 14 February 2000, convicting the applicant of rape with the
aid of weapons, which can be characterised as a “conviction”
for the purposes of the Convention. The judgment of the Coburg
Regional Court of 8 October 2008 ordering the applicant’s
preventive detention retrospectively in relation to that same offence
did not involve a finding of guilt in respect of a (new) offence and
cannot, therefore, be qualified as a “conviction” within
the meaning of sub-paragraph (a) of Article 5 § 1.
- Therefore,
the applicant’s preventive detention was justified under
Article 5 § 1 (a) only if it occurred “after” his
“conviction” of rape with the aid of weapons by the
Coburg Regional Court in February 2000. In other words, there must
have been a sufficient causal connection between that conviction and
the applicant’s preventive detention since 11 July 2008.
- The
Court notes, however, that in the said sentencing court’s
judgment, no order had been made for the applicant’s preventive
detention in addition to his prison sentence. It would add that the
applicant’s conviction at that time did not even involve a
possibility that he would be placed in preventive detention
retrospectively. The provision on which the applicant’s
preventive detention at issue was based, Article 66b § 2, had
only been inserted in the Criminal Code in July 2004 (see paragraph
33 above), after his offence and conviction.
- It
follows that there was no sufficient causal connection between the
applicant’s conviction in 2000 and his – retrospective –
preventive detention since July 2008. His detention was not,
therefore, justified under sub paragraph (a) of Article 5 §
1.
(ii) Sub-paragraph (e) of Article 5 §
1
- The
Court shall further examine whether, as submitted by the Government,
the applicant’s detention was justified under sub-paragraph (e)
of Article 5 § 1 as detention of a person “of unsound
mind” and of an “alcoholic”. Under the Court’s
well-established case-law (see paragraph 67 above), a detention as a
person “of unsound mind” requires, in the first place,
that the applicant was reliably shown to be of unsound mind; that is,
a true mental disorder must have been established before a competent
authority on the basis of objective medical expertise.
- The
Court notes in this connection that in the proceedings here at issue,
the domestic courts based their decision to extend the applicant’s
preventive detention on the reports of two psychiatric experts, K.
and S. (see paragraphs 15-16 above). The experts had found that the
applicant suffered from a personality disorder with narcissistic,
paranoiac and dissocial elements.
- The
Court doubts, however, whether the domestic courts ordering the
applicant’s preventive detention retrospectively can be said to
have established that the applicant suffered from a true mental
disorder within the meaning of sub-paragraph (e) of Article 5 §
1 on the basis of the said objective medical expertise before them.
It was not decisive for their decision whether the applicant should
be placed in preventive detention retrospectively whether he suffered
from a mental illness. The question before them was whether it was
very likely that he would again commit serious offences resulting in
considerable psychological or physical harm to the victims, be it
because of his mental condition or not (compare in this respect also
Kallweit, cited above, § 56; and O.H. v.
Germany, cited above, § 86).
- The
Court further observes that the domestic courts apparently did not
consider ordering the execution of the applicant’s preventive
detention in a psychiatric hospital. It would add that the applicant,
who had acted with full criminal responsibility at the time of his
offence, had apparently never been treated in a psychiatric clinic.
In subsequent proceedings under the Therapy Detention Act, two
experts found that – contrary to earlier findings of another
expert – the applicant’s apparently unchanged condition
could not be qualified as a “mental disorder” for the
purposes of that Act (see paragraph 29 above).
- In
any event, the Court cannot but note that at the time of the
proceedings at issue the applicant was detained in a separate wing of
Straubing Prison for persons in preventive detention. It refers in
this connection to its above case-law that, in principle, the
detention of a person as a mental health patient will only be
“lawful” for the purposes of sub paragraph (e) of
Article 5 § 1 if effected in a hospital, clinic or other
appropriate institution (see paragraph 69 above).
- Having
regard to the applicant’s conditions of detention in Straubing
Prison (see paragraphs 20-21 above), the Court is not convinced that
the applicant has been offered the therapeutic environment
appropriate for a person detained as being of unsound mind. The Court
does not overlook in this connection that the applicant refused to
restart a social therapeutic group therapy in prison. However, the
applicant’s conduct or attitude does not exempt the domestic
authorities from providing persons detained (solely) as mental health
patients with a medical and therapeutic environment appropriate for
their condition. Moreover, the applicant had declared to be ready to
make a suitable individual therapy at the time of the order for his
preventive detention (see paragraph 15 above) and had confirmed to be
ready to do so subsequently (see paragraph 21 above).
- The
Court cannot but subscribe in this context to the reasoning of the
Federal Constitutional Court in its judgment of 4 May 2011 in respect
of the suitable institutions for persons in preventive detention.
That court stressed that both the German Constitution and the
Convention required a high level of individualised and intensified
offer of therapy and care by a team of multi-disciplinary staff to
persons in preventive detention. It further found that detainees had
to be offered an individualised therapy if the standard therapies
available in the institution did not have prospects of success (see
paragraph 47 above).
- Having
regard to the foregoing, the Court considers that in the
circumstances of the present case, the applicant has not been
detained in an institution suitable for the detention of mental
health patients.
- As
for the Government’s further argument that the applicant’s
detention was justified under sub-paragraph (e) of Article 5 § 1
as that of an “alcoholic”, similar considerations apply.
In particular, the Court cannot discern that the domestic courts
based their decision in the proceedings at issue to order the
applicant’s preventive detention retrospectively on the fact
that his conduct under the influence of alcohol posed a threat to the
public.
- Consequently,
the continuation of the applicant’s detention was not covered
by sub-paragraph (e) of Article 5 § 1 either.
(iii) Conclusion
- The
Court further takes the view – and this is uncontested by the
parties – that none of the other sub-paragraphs of Article 5 §
1 can serve to justify the applicant’s detention at issue.
- Furthermore,
the Court, having regard to the Government’s submission that
its interpretation of Article 5 § 1 had to take into account the
States’ duty under Articles 2 and 3 of the Convention to
protect victims from further offences (see paragraphs 61 and 65
above), refers to its findings in the case of Jendrowiak v.
Germany (no. 30060/04, §§ 36-38,
14 April 2011; see also O.H. v. Germany,
cited above, §§ 93-94). Articles
2 and 3 of the Convention do not permit a State to protect
individuals from criminal acts of a person by measures which are in
breach of that person’s Convention rights, in particular the
right to liberty as guaranteed by Article 5 § 1.
Consequently, the State authorities cannot, in the present case, rely
on their positive obligations under the Convention in order to
justify the applicant’s deprivation of liberty which, as has
been shown above (see paragraphs 71-87), did not fall within any of
the permissible grounds for deprivation of liberty exhaustively
listed under sub-paragraphs (a) to (f) of Article 5 § 1.
- There
has accordingly been a violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE
CONVENTION
- The
applicant further claimed that the retrospective order for and
execution of his preventive detention violated the prohibition on
increasing a penalty retrospectively. He relied on Article 7 § 1
of the Convention, which reads as follows:
“1. 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. The parties’ submissions
- The
Government argued that the applicant had not exhausted domestic
remedies in this respect, as required by Article 35 § 1 of the
Convention. He had failed to complain either expressly or in
substance about a breach of his right not to have a heavier penalty
imposed on him than the one applicable at the time of his offence in
his constitutional complaint to the Federal Constitutional Court. In
that complaint, he had only alleged that his preventive detention had
been disproportionate in view of insufficient therapeutic measures.
Having regard, inter alia, to the fact that the previous
decision of the Federal Constitutional Court dated 23 August
2006 referred to by the applicant dated back a couple of years, a
complaint to the Constitutional Court in this respect also had not
been an ineffective remedy which the applicant had not been obliged
to exhaust.
- The
applicant contested that view. He claimed that he had complained in
substance about a breach of the prohibition of retrospective
punishment by his preventive detention. He had set out in his
constitutional complaint, in particular, that it was dishonourable
for a State governed by the rule of law to expose persons to a risk
of live-long punishment by retrospective changes in the law and to
deprive them at the same time of the necessary means enabling them to
regain their liberty. In any event, given the Federal Constitutional
Court’s well-established case-law on the issue (see paragraphs
40-43 above), it would not even have been necessary for the applicant
to lodge a constitutional complaint in this respect, which did not
have any prospects of success.
B. The Court’s assessment
- The
Court reiterates that Article 35 § 1 of the Convention requires
that the complaints intended to be made subsequently at Strasbourg
should have been made to the appropriate domestic courts, at least in
substance and in compliance with the formal requirements and
time-limits laid down in domestic law (see Cardot v. France,
19 March 1991, § 34, Series A no. 200; and Akdivar, cited
above, § 66). The applicant must have recourse to available
remedies in the domestic system which are effective in respect of the
breach of the Convention alleged (see Akdivar, cited above, §§
65-67).
- Therefore,
an applicant cannot be regarded as having failed to exhaust domestic
remedies if he or she can show, by providing relevant domestic
case-law or any other suitable evidence, that an available remedy
which he or she has not used was bound to fail. However, the
existence of mere doubts as to the prospects of success of a
particular remedy which is not obviously futile is not a valid reason
for failing to exhaust domestic remedies (see, inter alia,
Kleyn and Others v. the Netherlands [GC], nos. 39343/98,
39651/98, 43147/98 and 46664/99, § 156, ECHR 2003 VI; and
NA. v. the United Kingdom, no. 25904/07, § 89, 17 July
2008).
- The
Court notes that it is uncontested between the parties that in his
constitutional complaint of 30 April 2009, the applicant did not
expressly complain about a breach of the prohibition of retrospective
punishment enshrined in Article 103 § 2 of the Basic Law (see
paragraph 30 above). It further observes that the submissions of the
applicant, represented by counsel, concerning retrospective changes
in the law were clearly made in the context of the applicant’s
complaint that his preventive detention, being disproportionate,
violated his right to liberty under Article 2 § 2 of the Basic
Law and Article 5 § 1 of the Convention (see paragraph 18
above). In these circumstances, the applicant cannot be considered as
having complained at least in substance before the Federal
Constitutional Court about a breach of the prohibition on increasing
a penalty retrospectively under Article 7 § 1 of the Convention
by the retrospective order for and execution of his preventive
detention.
- As regards the effectiveness of a complaint to the
Federal Constitutional Court in the applicant’s case, the Court
notes that in a previous decision of 23 August 2006, that court had
found that Article 66b § 2 of the Criminal Code did not
violate the ban on the retrospective application of criminal laws
imposed by Article 103 § 2 of the Basic Law. Relying on its
well-established case-law, it found that that ban did not cover
preventive detention, which could not be qualified as a penalty to
compensate for guilt (see paragraph 41 above).
- However, the Federal Constitutional Court subsequently
reversed that case-law following constitutional complaints which had
partly been lodged prior to the applicant’s constitutional
complaint of 30 April 2009 (see paragraphs 44-47 above). Moreover,
the Court notes that in its decision of 23 August 2006, the Federal
Constitutional Court considered Article 66b § 2 of the Criminal
Code as such to comply both with the ban on retrospective application
of criminal laws and the constitutional right to liberty (see
paragraphs 40-42). The applicant did not explain why, having regard
to these principles, a constitutional complaint raising in substance
a breach of Article 5 of the Convention – which he lodged –
had prospects of success whereas a complaint under Article 7 of the
Convention had to be considered as obviously futile. In these
circumstances, the applicant failed to demonstrate that a complaint
to the Federal Constitutional Court, raising the issue of the
compliance of his retrospective preventive detention with the
prohibition on increasing a penalty retrospectively or with the
constitutional protection of legitimate expectations was necessarily
bound to fail.
- It follows that the Government’s objection must
be allowed and this part of the application be dismissed
for non-exhaustion of domestic remedies, pursuant to Article
35 §§ 1 and 4 of the Convention.
III. 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 the reimbursement of costs for his detention which
he had been charged with, amounting to 12.44 euros (EUR) per day, in
respect of pecuniary damage. He submitted an invoice of Straubing
Prison ordering him to pay EUR 783.92 in costs for detention for 2009
because he had been out of work as a result of his own fault since
29 October 2009.
- The
applicant further claimed EUR 100 per day of illegal preventive
detention since 11 July 2008 in respect of non-pecuniary damage.
- The
Government submitted in relation to the applicant’s claim in
respect of pecuniary damage that the applicant had been charged with
costs for his detention as he had lost his job in prison after having
insulted a staff member. They further argued that the sum claimed by
the applicant in respect of non-pecuniary damage, having regard to
the Court’s awards in other preventive detention cases, was
excessive.
- As regards the applicant’s claim in respect of
pecuniary damage the Court refers to its above finding that the
applicant had been detained in breach of Article 5 § 1 since 11
July 2008 and throughout the year 2009. It considers that there was,
therefore, a causal link between his detention in breach of the
Convention and the costs for that detention he had been charged with.
Having regard to the documentary evidence submitted by the applicant,
it therefore awards him EUR 783.92 under this head, plus any tax that
may be chargeable.
- As regards the applicant’s claim in respect of
non-pecuniary damage, the Court takes into consideration that the
applicant has been detained in breach of Article 5 § 1 of the
Convention as a result of the proceedings here at issue since 11 July
2008 and until the final conclusion of the subsequent proceedings for
review of his preventive detention (see paragraphs 24-27 above). This
must have caused him distress and frustration. Having regard to all
the circumstances of the case and making its assessment on an
equitable basis, the Court awards the applicant EUR 20,000, plus
any tax that may be chargeable, under this head.
B. Costs and expenses
- Submitting
documentary evidence, the applicant also claimed a total of EUR
29,622.52 for the costs and expenses incurred in the proceedings at
issue before the domestic courts. These included lawyer’s fees
amounting to EUR 2,019.93 (including value-added tax (VAT)) in the
proceedings before the Coburg Regional Court, lawyer’s fees of
EUR 1,145.14 (including VAT) in the proceedings before the
Federal Court of Justice and lawyer’s fees of EUR 949.14
(including VAT) in the proceedings before the Federal Constitutional
Court. Furthermore, the applicant claimed that he had been charged
with court costs amounting to EUR 25,508.31 for the proceedings
at issue, which were set off against the applicant’s own
savings. He submitted an invoice in that respect, referring to a
previous invoice relating to matters concerning the execution of
sentences and declaring that the claim for court costs should be set
off against the applicant’s claim against Straubing Prison for
payment of own savings.
- The
applicant further requested the reimbursement of lawyer’s fees
of EUR 355.75 incurred in the proceedings for his placement under the
Bavarian (Mentally Ill Persons’) Placement Act (see paragraph
22 above). He also claimed the payment of the lawyer’s fees he
had incurred in the subsequent proceedings concerning his request to
declare the execution of his preventive detention unlawful (EUR
2,060.84, see paragraph 23 above) and those for judicial review of
his preventive detention (EUR 737.80, see paragraphs 24-27 above) as
well as lawyer’s fees of EUR 200 for proceedings aimed at a
reopening of the proceedings here at issue. The amounts claimed
include VAT.
- The
applicant further requested that the Government bear the costs of the
proceedings before this Court.
- The
Government argued that the applicant had failed to explain what
exactly the costs of the proceedings amounting to EUR 25,508.31 had
been charged for, whether they had all been incurred in the
proceedings at issue and to what extent they had actually been set
off against the applicant’s claims and had therefore failed to
substantiate his claim. Moreover, the applicant could not claim the
reimbursement of lawyer’s fees incurred in different
proceedings than those concerning his preventive detention ordered in
2008.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. It observes that the present case only
concerns the retrospective order for the applicant’s preventive
detention made in 2008 and confirmed on appeal and the applicant may
therefore only claim the reimbursement of costs in this respect. It
further notes that the applicant did not furnish details as regards
the court costs amounting to EUR 25,508.31 he had claimed and as to
whether he had actually paid those costs in so far these were
necessarily incurred in the proceedings here at issue.
- Conversely,
the Court is satisfied that the lawyer’s fees claimed by the
applicant in respect of the proceedings at issue were actually and
necessarily incurred and reasonable as to quantum. Regard being had
to the documents in its possession and the above criteria, the Court
therefore awards the sum of EUR 4,114.21, which includes VAT, plus
any other tax that may be chargeable to the applicant, for costs and
expenses in the domestic proceedings.
- The
Court further notes that the applicant, who was granted legal aid in
the proceedings before this Court, did not submit a quantified claim
for costs and expenses incurred in these proceedings. Accordingly,
the Court does not make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 complaint under Article 5 § 1
of the Convention concerning the retrospective order of the
applicant’s preventive detention admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
5 § 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, the following amounts:
(i) EUR
783.92 (seven hundred and eight-three euros, ninety-two cents), plus
any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR
20,000 (twenty thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(iii) EUR
4,114.21 (four thousand one hundred and fourteen euros, twenty-one
cents), including VAT, plus any other tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 19 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
