Communicated on 3 December 2015

FIFTH SECTION

Application no. 64337/12 Heinz Rainer MAREK against Germany lodged on 1 October 2012

STATEMENT OF FACTS

The applicant, Mr Heinz Rainer Marek, is a German national, who was born in 1954 and is currently detained in Rosdorf Prison. He is represented before the Court by Mr E. Medecke , a lawyer practising in Hamburg.

A. The circumstances of the case

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

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

On 7 September 1998 the Verden Regional Court convicted the applicant of dangerous assault and two further counts of assault, committed on 18 September 1997 in a hostel for the homeless. It sentenced the applicant, who had acted with diminished criminal responsibility as a result of alcohol consumption, to three years and six months ’ imprisonment and ordered his preventive detention, a measure which was imposed on the applicant for the first time, under Article 66 § 1 of the Criminal Code (see Relevant domestic law and practice below) .

On 26 April 2011 the applicant, who has been detained since the commission of his offence in 1997, had served his full sentence and ten years in preventive detention. His preventive detention has been executed in Celle Prison since October 2008.

2. The proceedings at issue

On 13 May 2011 the Lüneburg Regional Court ordered the applicant ’ s preventive detention to continue beyond ten years. It found that the requirements of Article 67d § 3 of the Criminal Code, interpreted in a restrictive manner as prescribed by the Federal Constitutional Court in its judgment of 4 May 2011 ( file nos. 2365/09 and others, see Relevant domestic law and practice below), were met. Endorsing the findings of a psychiatric expert it had consulted, t he Regional Court considered that there was a high risk that the applicant would commit further most serious crimes of violence or sexual offences. He further suffered from a mental disorder for the purposes of section 1 of the Therapy Detention Act, namely a psychosis with paranoiac and schizophrenic elements, a dissocial personality disorder and alcohol abuse.

On 21 June 2011 the Celle Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant ’ s appeal as ill-founded. The decision was served on the applicant ’ s counsel on 11 July 2011.

On 3 August 2011 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Regional Court and of the Court of Appeal. He argued that the courts ’ order for the continuation of his preventive detention beyond the former statutory ten-year maximum duration applicable at the time when he had committed the offences in 1997 had violated his constitutional right to liberty, the prohibition on retrospective punishment, the prohibition on retrospective measures enshrined in the principle of the rule of law, the principle of proportionality and the right to equal treatment. He argued that he had taken note of the Federal Constitutional Court ’ s judgment of 4 May 2011 (see Relevant domestic law and practice below). He claimed, however, that he had to be released as a result of the European Court of Human Rights ’ findings in its judgment of 17 December 2009 in the case of M. v. Germany ( no. 19359/04, ECHR 2009), as had been the case for other detainees. He considered that, in line with the findings in the latter judgment, preventive detention was a penalty within the meaning of Article 7 of the Convention which could not be prolonged retrospectively. It was therefore irrelevant whether, as required by the Federal Constitutional Court in its said judgment, there was a high risk of his committing serious offences and whether he suffered from a mental disorder.

On 17 April 2012 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 1677/11). It considered that the applicant had failed to sufficiently substantiate his complaint. He had not even shown in a rudimentary manner in how far his constitutional rights might have been breached having regard to the principles established by the court in its judgment of 4 May 2011.

3. Subsequent developments

On 20 June 2012 the Lüneburg Regional Court again ordered the continuation of the applicant ’ s preventive detention. The decision was confirmed on appeal. The applicant was subsequently transferred to Rosdorf Prison.

B. 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, as well as a summary of the Federal Constitutional Court ’ s case-law on the subject-matter, is contained in the Court ’ s judgments in the case of M. v. Germany ( cited above, §§ 45-78) and Glien v. Germany ( no. 7345/12 , §§ 32-52, 28 November 2013 ).

In essence, under Article 66 § 1 of the Criminal Code a sentencing court may, at the time of an offender ’ s conviction, order his preventive detention (a measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty) if the offender has been shown to be dangerous to the public.

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. Article 67d § 3 of the Criminal Code, in its amended version in force at the relevant time, provided that if a person had spent ten years in preventive detention, the court should declare the measure terminated (only) if there was no danger that the detainee would commit serious offences resulting in considerable psychological or physical harm to the victims.

In a judgment of 4 May 2011 (file nos. 2 BvR 2365/09 and others) the Federal Constitutional Court declared that the provisions of the Criminal Code on the retrospective prolongation of preventive detention were incompatible with the Basic Law, but remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest under the following restrictive conditions. The preventive detention of the persons concerned could only be prolonged retrospectively if, owing to specific circumstances relating to their person or their conduct, there was a high risk 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 § 1 of the newly enacted Therapy Detention Act.

COMPLAINTS

Relying on the Court ’ s judgment in the case of M. v. Germany ( cited above ), the applicant complains under Article 5 § 1 and Article 7 § 1 of the Convention about the retrospective prolongation of his preventive detention beyond the former ten-year maximum duration in the proceedings at issue.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, did the applicant invoke before the national authorities, at least in substance, the rights under Articles 5 § 1 and 7 § 1 of the Convention on which he now wishes to rely before the Court?

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention as a result of the proceedings at issue?

Having regard to the Court ’ s judgments in the cases of M. v. Germany (no. 19359/04, ECHR 2009) and Glien v. Germany (no. 7345/12, 28 November 2013 ), did that deprivation of liberty fall within any of the sub-paragraphs (a) to (f) of Article 5 § 1?

In particular, having regard to the fact that the applicant ’ s preventive detention was ordered in a judgment of 7 September 1998 in respect of an offence committed on 18 September 1997 , was that detention justified under Article 5 § 1 (a)?

And was the applicant ’ s detention justified under Article 5 § 1 (e)? In particular, were the applicant ’ s conditions of detention during the relevant period adapted so as to take account of the fact that he was considered as suffering from a mental disorder?

3. Taking into consideration, in particular, the Court ’ s conclusions in its judgments in the cases of M. v. Germany ( cited above ) and Glien (cited above) , was a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of his offences by the prolongation of his preventive detention beyond ten years, in breach of Article 7 § 1 of the Convention? In particular, where and under which conditions was the applicant ’ s preventive detention executed in Celle Prison during the period of detention here at issue?