FIFTH SECTION

DECISION

Application no . 2894/08 Dieter DÖRR against Germany

The European Court of Human Rights (Fifth Section), sitting on 22 January 2013 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ganna Yudkivska , André Potocki , Paul Lemmens , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 3 January 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dieter Dörr , is a German national, who was born in 1950. He is currently in Diez Prison.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The order for the applicant ’ s preventive detention and its execution

On 22 February 1988 the Mainz Regional Court convicted the applicant of two counts of rape and one count of attempted rape and bodily assault. It sentenced him to ten years ’ imprisonment and ordered his preventive detention ( Sicherungsverwahrung , Article 66 §§ 1 and 2 of the Criminal Code, see Relevant domestic law below). The Regional Court found that the applicant had raped a waitress in his mobile home in November 1986 and had raped another waitress in a guesthouse in February 1987. He had further attempted to rape a visibly pregnant woman in August 1987 and had injured her husband.

On 13 June 1996 the Mainz Regional Court convicted the applicant of two counts of rape and of two counts of sexual abuse of his minor daughter . Including the sentence imposed on the applicant by its judgment of 22 February 1988, it sentenced him to eleven years and six months ’ imprisonment. It further upheld the preventive detention order made in the said previous judgment. The court found that the applicant had raped his eldest daughter on two occasions, in September 1982 and in March 1984, when the latter had been aged six and eight respectively. He had further had sexual intercourse with his eldest daughter, then aged nine, on two occasions in 1985 without having used force.

Since 19 January 1999 the applicant, having served his full prison sentence, has been in preventive detention, mainly in Diez Prison.

On 19 January 2000 the Koblenz Regional Court , having regard to the report dated 20 August 1999 of an external psychiatric expert (G.) it had consulted, ordered the execution of the applicant ’ s preventive detention. Expert G. had found that the applicant, a dissocial personality, had refused all offers of therapy made to him throughout the execution of his sentence. It was therefore still likely that he would commit further similar sexual offences if released.

On 18 February 2001 the Arnsberg Regional Court , having regard to the report of another external psychiatric expert (T.) dated 30 January 2001, refused to suspend the applicant ’ s preventive detention and to grant probation. Having examined the applicant in person, the expert had found that the applicant kept denying all his previous sexual offences. He had not reflected on these offences and their causes and was therefore still dangerous to the public.

On 9 April 2003 the Arnsberg Regional Court and on 24 March 2005 the Koblenz Regional Court again ordered the continued execution of the applicant ’ s preventive detention. The latter found, in particular, that the applicant still had not reflected on his offe nces in a necessary therapy. He had discontinued a group therapy for sexual offenders and had refused to make the single therapy offered to him. There was therefore still a risk that he would commit further sexual offences if he were released.

2. The proceedings at issue

(a) The decision of the Koblenz Regional Court

On 20 April 2007 the Koblenz Regional Court refused to suspend on probation the preventive detention of the applicant, ordered by the Mainz Regional Court in June 1996. It found that it still could not be expected that the applicant would not commit further offences if released (Article 67d § 2 of the Criminal Code , see Relevant domestic law below ).

Having heard the applicant, his counsel and the prison psychologist in person, the Regional Court found that the applicant still denied his offences – even during the hearing – and was therefore unable to reflect on his criminal acts with the help of a therapist. It further noted that the director of Diez Prison, in his statement dated 5 February 2007, had taken the view that the applicant ’ s preventive detention should be continued. The latter had noted that the applicant had discontinued individual therapy sessions offered to him as well as the group therapy for sexual offenders. Therefore, there was nothing to indicate that the applicant was no longer dangerous to the public. The Mainz Public Prosecutor ’ s Office, in its statement of 13 February 2007, had taken the same view.

The Regional Court observed, in particular, that the applicant had refused to undergo the single and group therapies offered to him. Therefore, the analysis made by expert T. in 2001 that the applicant was dangerous to the public as he had not yet reflected on his offences was still valid. In these circumstances, it would have been necessary that clear positive changes in the applicant ’ s personality had taken place in order for the court to come to the conclusion that the applicant would not reoffend if released. However, there was no indication whatsoever that the applicant attempted to critically reflect on his past offences and was thus no longer dangerous to the public. Therefore, it had not been necessary to obtain a fresh expert opinion on the applicant ’ s dangerousness as such an opinion was only necessary as soon as there had been a noticeable progress in a detainee ’ s therapy.

(b) The decision of the Koblenz Court of Appeal

On 18 July 2007 the Koblenz Court of Appeal dismissed the applicant ’ s appeal. Endorsing the reasons given by the Regional Court , it considered that it was not to be expected that the applicant would not commit further offences on his release (Article 67d § 2 of the Criminal Code).

It found, in particular, that the applicant ’ s own submissions to the court confirmed the view taken by the prison director and the prison psychologist that the applicant had not changed his at titude towards his offences. He persistently denied his offences and accused his victims and the psychologist of false statements. He had refused to undergo the therapies offered to him in order to reflect on his offences and on the deficiencies in his personality described by the experts G. and T. in their reports drawn up in 1999 and 2001.

The Court of Appeal further found that, contrary to the applicant ’ s submission, it had not been necessary to consult an external expert in these circumstances. The Regional Court would only have been obliged, under Article 463 § 3 and Article 454 § 2 of the Code of Criminal Procedure (see Relevant domestic law below), to obtain a fresh expert report if it had considered suspending the applicant ’ s preventive detention and granting probation. The Regional Court had, however, considered the further execution of the applicant ’ s preventive detention necessary.

(c) The decision of the Federal Constitutional Court

On 13 August 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court . He complained, in particular, that the lower courts had refused to obtain a fresh expert report on his dangerousness despite the fact that the last report of a biased expert dated back more than six years. He stressed in that context that he had been wrongly convicted of sexual offences whereas he had only had sexual intercourse with “the prostitutes”, had been wrongly accused by his daughter and had changed following con versations with his family. His continued preventive detention was a disproportionate and illegal double punishment imposed in unfair proceedings and amounted to mental torture.

On 14 December 2007 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint as it was ill-founded (file no. 2 BvR 1751/07). It found, in particular, that the applicant ’ s constitutional right to liberty had not been breached by the lower courts ’ failure to obtain a new expert report on the applicant ’ s dangerousness. Under the applicable provisions of the Code of Criminal Procedure (Article 463 § 3 and Article 454 § 2, see Relevant domestic law below) the courts had to obtain a fresh report by an external expert prior to the applicant ’ s having spent ten years in preventive detention notably if they considered suspending the execution of the preventive detention order. For the convincing reasons given by the lower courts, this had not, however, been the case here.

The Federal Constitutional Court further found that there had also not been other reasons for obtaining a fresh expert report. The applicant had failed to substantiate that there had been substantial changes since his last examination by an expert which warranted o btaining new expert advice. His conversations with his family were not sufficient in this respect.

The Federal Constitutional Court noted, moreover, that prior to their forthcoming decision on whether the applicant ’ s preventive detention was to continue also beyond ten years, the lower courts were obliged, under Article 463 § 3 of the Code of Criminal Procedure, read in conjunction with Article 67d § 3 of the Criminal Code (see Relevant domestic law below), to obtain a new expert report. Having regard to these elements as a whole, it had still been constitutional in the circumstances of the present case to take a decision on the continuation of the applicant ’ s preventive detention at issue without consulting another expert.

3. Subsequent developments

On 16 September 2009 the Koblenz Regional Court ordered the further execution of the applicant ’ s preventive detention beyond ten years (Article 67 § 3 of the Criminal Code). It had previously consulted an external psychiatric expert (B.), who had examined the applicant in person and had considered that there was still a risk that the applicant would commit further sexual offences if released. The applicant withdrew his appeal against that decision after the Koblenz Court of Appeal had obtained another fresh report of a psychiatric expert (Bu.).

It emerges from the applicant ’ s submissions that on 23 December 2011 the Koblenz Court of Appeal again ordered the continuation of the applicant ’ s preventive detention. On 20 July 2012 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint against the latter decision (file no. 2 BvR 559/12).

The applicant is apparently still in preventive detention.

B. Relevant domestic law

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:

1. 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 a danger to the public (Article 66 § 1 of the Criminal Code).

In particular, the sentencing court may order preventive detention in addition to the penalty under Article 66 § 2 of the Criminal Code if the person concerned committed three intentional offences for each of which he incurred a term of imprisonment of at least one year and if the person is sentenced for one or more of these offences to at least three years ’ imprisonment. In addition, a comprehensive assessment of the person 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 person presents a danger to the general public. It is not necessary under that provision that the perpetrator has been previously convicted or detained.

2. 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. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time ‑ limit is two years (paragraph 2 of Article 67e).

Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention could not exceed ten years. If the maximum duration had expired, the detainee was to be released (Article 67d § 3).

Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. 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 67d § 2 of the Criminal Code provides that if there is no provision for a maximum duration of the measure of correction and prevention or if the time-limit has not yet expired, the court ( i.e. the chamber responsible for the execution of sentences) shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release.

3. Provisions on expert opinions

Under Article 454 § 2 of the Code of Criminal Procedure, the court is obliged to obtain the report of an expert on a convicted offender if it considers suspending on probation a sentence of more than two years ’ imprisonment imposed for certain (enumerated) serious offences and if it cannot be excluded that reasons of public security preclude the convicted person ’ s early release.

Article 463 of the Code of Criminal Procedure provides that Article 454 § 2 of that Code applies, mutatis mutandis and irrespective of the criminal offences enumerated in that provision, if the court has to decide on the execution of a preventive detention order under Article 67d §§ 2 and 3 of the Criminal Code. In order to prepare its decision under Article 67d § 3 of the Criminal Code, the court is obliged to obtain an expert report notably on the question whether it had to be expected that the convicted offender, owing to his propensity to commit serious offences, would commit further serious unlawful acts if released.

COMPLAINTS

Relying on Articles 1 to 3, 5, 6, 7 and 13 of the Convention, the applicant complained about the execution of the preventive detention order against him. He argued that his preventive detention, which had been ordered following a wrong conviction on the basis of untrue statements, was not covered by sub-paragraphs (a) to (f) of Article 5 § 1. That detention had further been based on an old and insufficient expert opinion and an insufficient establishment of the facts concerning his dangerousness, which had made the proceedings against him unfair and his complaints ineffective. Moreover, he claimed that his detention for an indefinite duration amounted to a disproportionate double punishment and mental torture of an innocent person.

THE LAW

A. Complaint about the order for the continued execution of the applicant ’ s preventive detention

Invoking Articles 1 to 3, 5, 6, 7 and 13 of the Convention, the applicant complained, in particular, that his preventive detention was not authorised by sub-paragraphs (a) to (f) of Article 5 § 1 and had been based on an outdated and insufficient expert report and an insufficient establishment of the facts concerning his dangerousness.

The Court considers that this part of the application falls to be examined under Article 5 § 1 of the Convention alone which, in so far as relevant, provides:

“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; ... ”

In determining whether the applicant was deprived of his liberty in compliance with Article 5 § 1 during his preventive detention here at issue, ordered by the Koblenz Regional Court in April 2007 and confirmed on appeal, the Court refers to its findings in its leading judgment in the case of M. v. Germany ( no. 19359/04, ECHR 2009). 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 of the Criminal Code in addition to a prison sentence , 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 above case , from which it sees no reason to depart, the Court considers that the preventive detention of the applicant in the present case was based on his “conviction”, for the purposes of Article 5 § 1 (a), by the Mainz Regional Court on 13 June 1996, which included the sentence imposed and the preventive detention order made by the Mainz Regional Court on 22 February 1988 . The Court emphasises in that context that, unlike the applicant in the M. v. Germany case, the applicant in the present case was not in preventive detention for a period beyond the statutory ten-year maximum period, applicable at the time of his offence, at the time of the domestic court decisions taken in 2007 here at issue. It would add that the applicant only lodged an application with the Court complying with the requirements of Rule 47 §§ 1 and 2 of the Rules of Court in respect of these latter decisions.

In so far as the applicant complained that the domestic courts insufficiently established whether he was still dangerous to the public and whether his continued preventive detention was still necessary as a result thereof, the Court reiterates that the wording detention “after” conviction in sub-paragraph (a) of Article 5 § 1 means that there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see, inter alia , 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; and Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008 ‑ ... ).

However, with the passage of time, the link between the initial conviction and a further deprivation of liberty gradually becomes less strong. The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re ‑ detain was based on grounds that were inconsistent with the objectives of the initial decision (by a sentencing court) or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (see Van Droogenbroeck v. Belgium , 24 June 1982, § 40, Series A no. 50; Weeks , cited above, § 49; and M. v. Germany , cited above , § 88).

The Court observes that the domestic courts ’ order for the applicant ’ s continued preventive detention aimed at preventing him from committing further sexual offences similar to the rapes he had been found guilty of by the sentencing courts in 1988 and 1996. The order was thus based on grounds which were consistent with the objectives of the initial decision by the sentencing Mainz Regional Court, which ordered the applicant ’ s preventive detention in order to protect the public from serious sexual offences.

In determining whether the domestic courts ’ decision not to release the applicant was based on an assessment that was unreasonable in terms of those objectives, the Court takes note of the applicant ’ s argument that the decision on his continued preventive detention was based on an old and insufficient expert opinion and an insufficient establishment of the facts concerning his dangerousness.

The Court considers that a situation in which the domestic courts based their decision not to release a person from preventive detention essentially on an outdated expert report on his dangerousness or refrained from obtaining indispensable expert advice in this respect would indeed raise an issue under Article 5 § 1. The reasonableness of the decision to prolong a person ’ s preventive detention would be called into question where the domestic courts plainly disposed of insufficient elements warranting the conclusion that the person concerned was still dangerous to the public.

However, the Court considers that in the circumstances of the present case, the domestic courts cannot be considered as having based their decision on the continuation of the applicant ’ s preventive detention essentially on an outdated expert report, as has been claimed by the applicant. It is true that the domestic courts, in their decisions taken in 2007 concluding that it was not to be expected that the applicant would not commit further offences on his release, referred to the analysis made by an external psychiatric expert (T.) in January 2001. They further referred to the deficiencies in the applicant ’ s personality described by the experts G. and T. in their reports drawn up in 1999 and 2001.

Having regard to the domestic courts ’ reasoning, it is clear, however, that they essentially referred to the experts ’ finding, dating back six and eight years respectively, that the applicant ’ s dangerousness resulted from the fact that he had refused all offers of – necessary – therapy made to him throughout the execution of his penalty and had not yet reflected on his offences. The domestic courts further found that the applicant still has not undergone the therapy considered necessary by these experts – and by the courts themselves. It was further established and uncontested that the applicant was offered different single and group therapies for sexual offenders and that he refused to complete any of those therapies. Moreover, as to the question whether the applicant had critically reflected on his offences and whether his dangerousness had been reduced thereby, the domestic courts found that both in his written and in his oral submissions to the courts, the applicant had persistently denied having raped any of his victims and accused the latter of false statements. Furthermore, the prison psychologist, whom the Regional Court had heard in person on possible changes in the applicant ’ s personality and attitude towards his offences, had confirmed that there had not been any significant such changes.

In these circumstances, the domestic courts ’ finding in 2007 that the applicant was still dangerous to the public had been based on the fact that, at that time, as confirmed by the applicant ’ s own statements and those of the prison psychologist, he still had not reflected on his offences in the course of a necessary therapy. The previous expert reports had only been used by the domestic courts to support their own view that, having regard to the applicant ’ s personality, a therapy was necessary in order to significantly reduce his dangerousness.

As regards the domestic courts ’ decision not to obtain a new expert report on the applicant ’ s dangerousness, the Court further observes that the applicant, as has already been stressed by the Federal Constitutional Court in its decision dated 14 December 2007, failed to substantiate that there had been any substantial changes in his personality or attitude towards his offences since his last examination by an expert. The domestic courts considered, in particular, that the fact that the applicant – who still accused his victims of having obtained his conviction by false statements – had had conversations with members of his family did not suffice to prove any such changes. In view of the evidence before the domestic courts, their decision not to consult another expert before concluding that there was still a risk that the applicant would commit further serious sexual offences if he were released cannot be considered as unreasonable.

The Court would add that, as set out by the Federal Constitutional Court, the domestic courts were obliged, under Article 463 § 3 of the Code of Criminal Procedure, read in conjunction with Article 67d § 3 of the Criminal Code (see Relevant domestic law above), to obtain a new expert report in the course of the next periodical review of the applicant ’ s preventive detention in 2009 – and did obtain that report in the meantime.

It follows that in the circumstances of the present case, the domestic courts ’ decision not to release the applicant had not been based on an assessment of his dangerousness that was unreasonable in terms of the objectives of the judgment of the sentencing court to protect the public from significant sexual offences.

Having regard to the foregoing, the Court further considers that the applicant ’ s preventive detention at issue was lawful for the purposes of Article 5 § 1. In particular, that detention did not become arbitrary as a result of the domestic courts ’ reference to previous expert reports or their decision not to obtain fresh expert advice.

It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Remainder of the applicant ’ s complaints

The applicant further complained under Articles 1 to 3, 5, 6, 7 and 13 of the Convention that his preventive detention had been ordered following a wrong conviction on the basis of untrue statements. Furthermore, the domestic courts ’ taking of evidence had rendered the proceedings against him unfair and his complaints ineffective. He further argued that his preventive detention for an indefinite duration amounted to a disproportionate double punishment and to mental torture of an innocent person.

The Court has examined the remainder of the applicant ’ s complaints as submitted by him. However, having regard to all material in its possession, the Court finds that, even assuming the compliance with further admissibility criteria set out in Article 35 §§ 1 and 3 (a) of the Convention, these complaints do, in any event, not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that the remainder of the application must equally be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President