FIFTH SECTION

DECISION

Application no . 27081/09 Klaus-Dieter TOMEO against Germany

The European Court of Human Rights (Fifth Section), sitting on 19 March 2013 as a Committee composed of:

Boštjan M. Zupančič , President, Angelika Nußberger , Helena Jäderblom , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 18 May 2009,

Having regard to the declaration submitted by the respondent Government on 17 October 2012 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Klaus-Dieter Tomeo, is a German national, who was born in 1957 and was detained in Bruchsal Prison before his release was ordered on 14 December 2011. He was represented before the Court by Mr C. Schneble, a lawyer practising in Offenburg .

The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, Ministerialrat , of the Federal Ministry of Justice.

The application had been communicated to the Government .

A. The circumstances of the case

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

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

On 20 March 1990 the Rottweil Regional Court convicted the applicant on four counts of sexual coercion, committed in July 1989 against a mentally handicapped twenty-year-old man and a twenty-two-year-old man. It sentenced him to six years and six months ’ imprisonment and ordered his preventive detention under Article 66 of the Criminal Code (see Relevant domestic law below).

From 12 September 1996 onwards the applicant, having fully served his prison sentence, was in preventive detention for the first time, executed initially in Freiburg Prison. He had served ten years in preventive detention on 12 September 2006.

On 19 December 2006 the Freiburg Regional Court ordered the continuation of the applicant ’ s preventive detention.

2. The proceedings at issue

(a) The decision of the Freiburg Regional Court

On 5 January 2009 the Freiburg Regional Court again ordered that the applicant ’ s preventive detention imposed in the Rottweil Regional Court ’ s judgment and executed in Freiburg Prison was to continue. Relying on Article 67d § 3 of the Criminal Code (see Relevant domestic law below), the court found that there was still a danger that the applicant, owing to his criminal tendencies, would commit serious sexual offences resulting in considerable psychological or physical harm to the victims if released.

The Regional Court had consulted a psychiatric expert, R., on the applicant ’ s dangerousness. In his report dated 27 September 2008 that expert had considered that the applicant suffered from a narcissistic and dissocial personality disorder which was at the root of his previous serious sexual offences. The Regional Court endorsed the findings of the expert and estimated the risk that the applicant would commit further serious sexual offences similar to those he had been found guilty of at more than 50 per cent. In these circumstances, the applicant ’ s continued preventive detention beyond ten years was also proportionate.

(b) The decision of the Karlsruhe Court of Appeal

On 6 February 2009 the Karlsruhe Court of Appeal, endorsing the reasons given by the Regional Court , dismissed the applicant ’ s appeal.

(c) The decision of the Federal Constitutional Court

On 8 April 2009 the Federal Constitutional Court refused to grant the applicant legal aid and to assign him a lawyer and declined to consider the applicant ’ s constitutional complaint dated 18 February 2009 against the Court of Appeal ’ s decision (file no. 2 BvR 454/09).

3. Subsequent developments

On 14 December 2011 the Karlsruhe Court of Appeal declared the applicant ’ s preventive detention terminated. The applicant was released.

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 , ECHR 2009 ). The most relevant provisions 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 of the Criminal Code).

2. Judicial review and duration of preventive detention

Under Article 67d § 1 of the Criminal Code, in the 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 applicable at the relevant time, 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 .

COMPLAINTS

The applicant complained under Article 3 of the Convention that his continued preventive detention for more than twelve years in breach of Article 67d § 3 of the Criminal Code and the manner of its execution (in particular the refusal to offer him adequate therapeutic treatment and the imposition of numerous disciplinary measures) had been disproportionate, unlawful and amounted to torture and inhuman treatment.

Relying on Articles 1, 2 and 6 of the Convention, the applicant further claimed that his right to a fair trial and the prohibition of double punishment had been violated. In particular, he had been diagnosed as dangerous to the public following insufficient expert examinations.

THE LAW

A. The applicant ’ s complaint about the continued execution of his preventive detention

The applicant complained under Article 3 of the Convention, in particular, that his continued preventive detention for more than twelve years in breach of Article 67d § 3 of the Criminal Code had been unlawful.

The Court considers that this part of the application falls to be examined under Article 5 § 1 of the Convention, 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; ...

(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; ... ”

1. The parties ’ submissions

After unsuccessful friendly settlement negotiations conducted in accordance with Article 39 of the Convention, the Government informed the Court by a letter of 17 October 2012 that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“ 1. The friendly settlement proposed by the Court has failed because it was rejected by the Applicant.

2. By way of unilateral declaration, the Federal Government would like to recognise that it violated the Applicant ’ s rights arising from Article 5 of the Convention because he was kept in preventive detention beyond 12 September 2006 and thereby longer than ten years.

3. The Federal Government is prepared to pay compensation in the amount of € 23,000 to the Applicant if the Court strikes the Application out of the list, on the condition of payment of the amount, pursuant to Article 37 (1) c) of the Convention. This would satisfy any and all claims, costs and expenses on the part of the Applicant due to placement in preventive detention in violation of the Convention.

The amount shall be payable within three months of the final decision by the Court to strike the case out of its list. ”

The Government further stressed that the Court ’ s case-law relating to Article 5 of the Convention as established in the case of M. v. Germany ( cited above ) and as confirmed in further parallel cases had been implemented in the meantime, in particular, by the Federal Constitutional Court ’ s leading judgment of 4 May 2011 (file nos. 2 BvR 2365/09 and others). Moreover, in accordance with the instructions given in that latter judgment, new draft legislation reforming the execution of preventive detention in Germany as a whole had been submitted to Parliament.

By a letter of 23 November 2012, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the compensation proposed by the Government was insufficient. He claimed compensation for non-pecuniary damage of EUR 85,500.

2. The Court ’ s assessment

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 39 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the declaration was made by the Government on 17 October 2012 outside the framework of the friendly-settlement negotiations (compare Rule 62A § 1 (c) of the Rules of Court and, for instance, Akman v. Turkey (striking out), no. 37453/97, § 26, ECHR 2001 ‑ VI; Genth v. Germany (dec.), no. 34909/04, 13 May 2008 ).

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Rule 62A § 3 and Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75, ECHR 2003-VI; Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007 ).

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar , cited above, §§ 75-77 ; see also Spółka z o.o. Waza v. Poland (dec.) no. 11602/02, 26 June 2007), and codified in Rule 62A.

The Court has established in a number of cases brought against Germany the nature and extent of the obligations which arise for the respondent State under Article 5 § 1 of the Convention in the context of an applicant ’ s continued preventive detention beyond the ten-year period in cases in which that had been the maximum for such detention under the legal provisions applicable at the time of the applicant ’ s offence(s) and conviction (see, in particular, M. v. Germany , cited above , §§ 79, 92-105 ; and Kallweit v. Germany , no. 17792/07 , §§ 37, 47-59, 13 January 2011; Schummer v. Germany , nos. 27360/04 and 42225/07 , §§ 45, 52-58, 13 January 2011; Mautes v. Germany , no. 20008/07 , §§ 32, 38-46, 13 January 2011; Jendrowiak v. Germany , no. 30060/04 , §§ 26, 32-39, 1 4 April 2011 ; O.H. v. Germany , no. 4646/08 , §§ 56, 80-95, 24 November 2011; and Kronfeldner v. Germany , no. 21906/09 , §§ 46, 73-88, 19 January 2012 ).

Having regard to the nature of the admissions contained in the Government ’ s unilateral declaration, the Court takes note of the Government ’ s clear acknowledgement that the applicant ’ s preventive detention during the period at issue in the present application was in breach of Article 5 of the Convention (see Rule 62A § 1 (b)).

Moreover, as to the question whether the respondent State made an undertaking to provide adequate redress and, as appropriate, to take necessary remedial measures (Rule 62A § 1 (b); see also Tahsin Acar , cited above, § 76), the Court considers, first, that the amount of compensation proposed by the Government to provide redress to the applicant is consistent with the amounts awarded in similar cases (cited above). The Court interprets the Government ’ s declaration as meaning that the compensation proposed is to be paid within three months from the date of notification of the Court ’ s decision issued in accordance with Article 37 § 1 of the Convention and that, in the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

The Court would further note that following the Court ’ s judgment in the case of M. v. Germany of 17 December 2009 (cited above), which was delivered after the decisions of the domestic courts here at issue had been taken, the Federal Constitutional Court, in a leading judgment of 4 May 2011, held that all provisions on the retrospective prolongation of preventive detention were incompatible with the Basic Law. That court further ordered that the courts dealing with the execution of sentences had to review without delay the detention of persons whose preventive detention had been prolonged retrospectively. By its judgment, the Federal Constitutional Court implemented this Court ’ s findings in its above ‑ mentioned M. v. Germany judgment on German preventive detention in the domestic legal order (see O.H. v. Germany , cited above, §§ 68, 117 ‑ 119; and Kronfeldner , cited above , §§ 59, 101-103 ). The Court would add that the applicant is no longer in preventive detention in breach of the Convention, that detention having been declared terminated on 14 December 2011.

In these circumstances, the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).

Moreover, in the light of the above considerations, and in particular given that the Court has already clarified the nature and extent of the obligations arising under Article 5 for the respondent State in a number of previous comparable cases, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ).

The Court would add that its decision constitutes a final resolution of this part of the application only insofar as the applicant was in preventive detention beyond the former ten-year time-limit as a result of the domestic court proceedings at issue in the present case.

Finally, the Court reiterates that, under Article 46 § 2 and Article 39 § 4 of the Convention, the Committee of Ministers is competent to supervise the execution of its final judgments and of the terms of friendly settlement decisions only. Should the respondent State, however, fail to comply with the terms of its unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see, for instance, Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

In view of the foregoing, it is appropriate to strike this part of the application out of the list.

B. The remainder of the applicant ’ s complaints

Relying on Article 3 of the Convention, the applicant further argued that his continued preventive detention for more than twelve years and the manner of its execution (notably the failure to offer him adequate therapies and the imposition of numerous disciplinary measures) had been disproportionate and amounted to torture and inhuman treatment.

Moreover, the applicant complained under Articles 1, 2 and 6 of the Convention that his right to a fair trial and the prohibition of double punishment had been violated. He claimed, in particular, that he had been diagnosed as dangerous to the public following insufficient expert examinations.

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 their compatibility ratione personae with the provisions of the Convention and the exhaustion of domestic remedies in all respects, these complaints do 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 be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the applicant ’ s complaint, to be examined under Article 5 § 1 of the Convention, about his continued preventive detention beyond a period of ten years as a result of the proceedings at issue and of the modalities for ensuring compliance with the undertakings referred to in that declaration;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it relates to the above complaint;

Declares the remainder of the application inadmissible.

Stephen Phillips Boštjan M. Zupančič Deputy Registrar President