Information Note on the Court’s case-law 192

January 2016

Bergmann v. Germany - 23279/14

Judgment 7.1.2016 [Section V]

Article 5

Article 5-1-e

Persons of unsound mind

Preventive detention of mental-health patient in purpose-built centre offering appropriate medical care: no violation

Article 7

Article 7-1

Heavier penalty

Retrospective extension of preventive detention intended to secure medical and therapeu tic treatment: no violation

Facts – Following the European Court’s judgments in M. v. Germany and various follow-up cases, the German Federal Constitutional Court held in a judgment of 4 May 2011 that provisions on the retrospective prolongation of prevent ive detention beyond the previous maximum ten-year term were incompatible with the German Basic Law. As a result, new legislation was introduced which entered into force on 1 June 2013. Transitional provisions set out in section 316f of the Introductory Ac t to the Criminal Code restricted the imposition or continuation of retrospective preventive detention to cases where the person concerned was suffering from a mental disorder and was highly likely to commit a serious crime of violence or sexual offence as a result. Article 66c of the Criminal Code changed the manner in which preventive detention was to be implemented, requiring personal treatment plans and suitable accommodation separate from detainees serving terms of imprisonment.

The applicant, who already had a lengthy list of previous convictions, was convicted in 1986 of attempted murder, attempted rape and dangerous assault. Finding on the basis of psychiatric evidence that his criminal responsibility was diminished, the trial court sentenced him to fifteen years’ imprisonment and ordered his preventive detention in view of the high risk of his reoffending. The preventive detention began in 2001 in a prison wing and was subsequently renewed at regular intervals. In July 2013 (af ter the original maximum ten-year period of preventive detention had expired) the court responsible for the execution of sentences ordered its continuation pursuant to section 316f of the Introductory Act after finding, on the basis of fresh psychiatric re ports, that the applicant was suffering from a “mental disorder” and that there remained a very high risk that he would commit serious sexually motivated violent offences if released. Since June 2013 the applicant has been detained in a purpose-built centr e developed inside a prison in order to comply, in particular, with the newly enacted Article 66c of the Criminal Code.

In the Convention proceedings the applicant complained that the court order extending his preventive detention beyond the maximum period of ten years had breached his right to liberty (Article 5 § 1 of the Convention) and violated the prohibition on retrospective punishment (Article 7 § 1).

Law – Article 5 § 1

(a) Detention “after conviction” (Article 5 § 1 (a)) – The applicant’s preventi ve detention beyond the statutory ten-year maximum was no longer detention “after conviction” by a competent court as there was no sufficient causal connection between his conviction in 1986 and his continued deprivation of liberty. It could not, therefore , be justified under sub-paragraph (a) of Article 5 § 1.

(b) “Persons of unsound mind” (Article 5 § 1 (e)) – The Court reiterated that an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions (the Winterwerp criteria) are satisfied: (i) he must reliably be shown to be of unsoun d mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; (ii) the mental disorder must be of a kind or degree that warrants compulsory confinement; and (iii) the validity of conti nued confinement depends upon the persistence of such a disorder. In addition, the detention of a person as a mental-health patient will, in principle, only be “lawful” for the purposes of sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clini c or other appropriate institution.

The Court was satisfied that the domestic courts were competent authorities and had established, on the basis of a recent objective psychiatric report, that the applicant had a mental disorder as defined by the applicab le domestic law. His condition necessitated both treatment with medication under medical supervision and therapy and the trial court had considered it sufficiently serious (when combined with the consumption of alcohol) to diminish the applicant’s criminal responsibility. The Court therefore considered that the applicant was suffering from a “true mental disorder” for the purposes of Article 5 § 1 (e). The Court was further satisfied that the disorder was of a kind or degree that warranted compulsory confin ement in view of the very high risk that he would commit serious sexually motivated violent offences if released. As to the persistence of the mental disorder, the Court noted that under the relevant legislation the applicant’s continued preventive detenti on could be ordered only if, and for so long as, there was a high risk that, if released, he would reoffend as a result of that disorder. The applicant was thus a person “of unsound mind” for the purposes of Article 5 § 1 (e). The question whether he also fell within the category of “alcoholics” for the purposes of that provision was left open.

The Court was also satisfied that the applicant was detained in an institution suitable for mental-health patients. He was held in a newly constructed preventive-de tention centre that had been built pursuant to the new federal rules requiring preventive detention to be executed in institutions that offered detainees individual and intensive care. The staff included a psychiatrist, psychologists and social workers. Th e applicant had received regular and repeated offers of appropriate treatment and had access to activities such as group therapy and motivation meetings. Overall, there had been a substantial change in the medical and therapeutic care offered to him follow ing his transfer to the preventive-detention centre. His position thus differed to that of the applicants in cases such as Glien v. Germany who were detained in separate prison wings without suitable facilities for mental-health patients.

Lastly, the Court was satisfied that the detention was in compliance with the substantive and procedural rules of domestic law and was not arbitrary.

Conclusion : no violation (unanimously).

Article 7: The Court accepted that the applicant’s preventive detention had been ex tended with retrospective effect under a law enacted after the applicant had committed his offences. It went on to consider whether the preventive detention constituted a penalty for the purposes of that provision.

In that connection it reiterated that th e concept of “penalty” in Article 7 was autonomous in scope, that the starting-point – and thus a very weighty factor – in any assessment of the existence of a penalty was whether the measure in question was imposed following conviction for a criminal offe nce and that other relevant factors were the characterisation of the measure under domestic law, its nature and purpose, the procedures involved in its making and implementation, and its severity.

The Court found that the more preventive nature and purpose of the revised form of preventive detention did not suffice to eclipse the fact that the measure, which entailed a deprivation of liberty without a maximum duration, had been imposed following conviction for a criminal offence and was still determined by courts belonging to the criminal justice system. However, in cases such as the applicant’s, where preventive detention was extended because of and with a view to the need to treat his mental disorder, both the nature and the purpose of the preventive deten tion substantially changed and the punitive element and its connection with the criminal conviction were eclipsed to such an extent that the measure should no longer be classified as a penalty within the meaning of Article 7 § 1. There had been a substanti al change in the nature of the applicant’s preventive detention after his transfer to the centre with the focus now being on the applicant’s medical and therapeutic treatment, while the preventive purpose pursued by the amended preventive detention legisla tion – which now required evidence of a mental disorder before preventive detention could be prolonged – attained decisive weight.

Conclusion : no violation (unanimously).

(See, in particular, Winterwerp v. the Netherlands , 6301/73 , 24 October 1979; M. v. Germany , 19359/04, 17 December 2009, Information Note 125 . and Glien v. Germany , 7345/12, 28 November 2013, Information Note 168 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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