Communicated on 11 June 2015

FIFTH SECTION

Application no. 45953/10 D.J. against Germany lodged on 9 August 2010

STATEMENT OF FACTS

The applicant, Mr D. J. , is a German national, who was born in 1952 and lives in Berlin.

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

A. The circumstances of the case

1. Background of the case

(a) The applicant ’ s conviction and the service of his prison sentence

On 1 October 1998 the Berlin Regional Court convicted the applicant, who had already served various prison sentences for offences including several dangerous assaults against former girlfriends, of dangerous bodily harm, and sentenced him to six and a half years ’ imprisonment. In its judgment the court also ordered the applicant ’ s preventive detention. The court found that the applicant had stalked his former girlfriend, terrorised her and her family with telephone calls, sudden appearances and threats against their life and limb, had finally waylaid his former girlfriend in front of her workplace and had twice stabbed her in the neck, immediately beside the carotid artery, with the intention of killing her. He had stopped his attack before stabbing his victim to death. Following Dr A. ’ s psychiatric expert opinion, the court was of the view that the applicant had acted with diminished criminal liability in accordance with Article 21 of the Criminal Code (see Relevant domestic law below) as he had been in a state of affective excitement combined with suffering from a neurasthenic syndrome that had restricted his clarity when attacking his former girlfriend.

The applicant served his full prison sentence which ended in February 2005.

(b) The execution of the applicant ’ s preventive detention

The applicant was not released at the end of his prison sentence but remained in factual preventive detention without a formal decision of the competent courts ordering the execution of the preventive detention because the respective proceedings, under Article 67c of the Criminal Code in its then relevant version (see Relevant domestic law below), were delayed.

On 15 June 2007 the Berlin Court of Appeal decided that the applicant ’ s further preventive detention without a court decision ordering its execution was unlawful and ordered its interruption in accordance with Article 458 § 3 in conjunction with Article 463 § 1 of the Code of Criminal Procedure (see Relevant domestic law below). The applicant was released.

While he was at liberty, he found a flat and a job and voluntarily started psychotherapy treatment with a female psychotherapist, So. He regularly attended psychotherapy sessions with So. and did not commit any criminal offences while at liberty.

On 9 July 2007 the Berlin Regional Court ordered the execution of the applicant ’ s preventive detention in accordance with Article 67c of the Criminal Code.

The applicant appealed against the decision. He remained at liberty while the appeal was pending.

On 27 May 2008 the Berlin Court of Appeal confirmed the Regional Court ’ s decision. Just like the Berlin Regional Court, it based its decision on the medical expert opinion by psychiatric expert Prof Dr B., Director of the institute of sexology at the Berlin University Clinic “Charité”, and of psychologist S. Prof Dr B. had examined the applicant on 10 February, 6 June, 14 June and 5 September 2005. S. had performed psychological tests with the applicant on 3 March 2005. Both experts had issued their common medical report on 15 September 2005 and had supplemented it with a further medical statement answering the questions of counsel representing the applicant on 20 April 2006. The report was based on the examination and testing of the applicant, the applicant ’ s prison dossiers and a large number of investigation files, as well as on an interview with one of his fellow prison in mates.

The experts came to the conclusion that the applicant suffered from a narcissistic and antisocial personality disorder. They were of the view that there was a very high risk that the applicant would reoffend because of his personality structure and could be expected to commit serious criminal offences mainly directed against potential female victims ’ physical and sexual integrity. The applicant had continually committed new crimes while on probation, so that his probation had been revoked in five cases. He had mostly directed his crimes against the physical and sexual integrity of women and had mostly committed them at the end of his relationships, when he had been unable to accept that his girlfriends had left him. He had twice stabbed his victims in the face, head or neck. Therapeutic treatment had not been successful so far.

The court followed the opinion of the psychiatric experts. It ruled that although the applicant had not committed any crimes during his year at liberty, and although he voluntarily and regularly underwent psychological treatment during that year, there was no reason to believe that he would abstain from reoffending. In the past the applicant had already abstained from committing further crimes for longer periods. His propensity to commit crimes against the physical and sexual integrity of his victims had primarily manifested itself at the end of relationships with his female partners. Such situations were likely to arise and to escalate again just as in the past.

With regard to the therapeutic treatment the applicant underwent while at liberty, the court held that it could only be proved that the applicant regularly attended the psychological sessions with So. There was no proof of the success of this treatment.

On 30 May 2008 the applicant presented himself voluntarily at the detention centre for the continuation of his preventive detention.

The applicant lodged a constitutional complaint with the Federal Constitutional Court against the Regional Court ’ s and the Court of Appeal ’ s decision on the execution of the preventive detention order.

On 2 September 2008 (2 BvR 1612/08) the Federal Constitutional Court refused to admit the complaint for examination without giving any reasons.

On 3 March 2009 the applicant lodged a complaint before this Court under Articles 5, 6 and 13 of the Convention (no. 12132/09). On 20 December 2012 the complaint was declared inadmissible by a single judge in a procedure pursuant to Article 27 of the Convention.

2. The proceedings at issue

(a) The decision of the Berlin Regional Court

On 12 October 2009 the Berlin Regional Court decided in its first periodical review proceedings, in accordance with Article 67e § 1 and § 2 and 67d § 2 of the Criminal Code in their then relevant version (see Relevant domestic law below), that the applicant ’ s preventive detention was to be continued and dismissed the applicant ’ s request for a new psychiatric expert opinion.

The court heard the prison authorities, who gave a written statement on 6 March 2009 saying that the applicant was not willing to work on his deficiencies and refused therapeutic treatment in the detention centre. The court also heard the applicant on 25 September 2009. It further based its decision on the opinion of the psychiatric expert Prof Dr B. and the psychotherapist S. of 15 September 2005, supplemented on 20 April 2006.

The court found that Article 454 § 2, read in conjunction with Article 463 § 3 of the Criminal Code (see Relevant domestic law below), only required a new psychiatric expertise as a basis for a periodical review if the court was considering releasing a detainee from preventive detention on probation, in order to ensure that he was no longer a danger to the public. The Court held that, in accordance with the case-law of the Federal Constitutional Court (see decision of 3 February 2003, no. 2 BvR 1512/02) and of the Constitutional Court of Berlin (see decision of 4 March 2009, no. VerfGH 104/07) it was otherwise within the discretion of the court assessing the continuation of the preventive detention to decide whether a new expert opinion was necessary. As a rule, such expert opinion would be necessary if the detainee suffered from psychiatric anomalies that demanded a psychiatric expert ’ s assessment in order to be able to predict the danger he represented for the public. Otherwise, a new psychiatric expertise was generally not necessary unless special new circumstances demanded a new examination of the detainee.

The court found that, in accordance with the legal standards described, there was no necessity to seek a new expert opinion. It referred to the arguments given in its decision of 9 July 2007, adding that there had been no significant changes since then. The applicant had refused to undergo therapeutic treatment within the detention centre since he had been returned to preventive detention. The expert opinion of Prof Dr B. and S. of 15 September 2005, amended on 20 April 2006, was therefore still recent enough.

The court was, however, of the view that the applicant should be allowed to continue his therapy with the external psychologist So., and for that purpose the prison authorities should allow and organise escorted short-term leave for therapy sessions with his psychologist outside the detention centre.

(b) The decision of the Berlin Court of Appeal

On 24 March 2010 the Berlin Court of Appeal dismissed the applicant ’ s appeal. The court held that in view of the applicant ’ s brutal crimes against his victims ’ physical and sexual integrity, the applicant could only be released if the probability that he would reoffend in this way was very low. Releasing the applicant on probation under the condition that he would undergo therapeutic treatment outside the detention centre would be irresponsible. There were no convincing and verifiable indications that the applicant had tackled his crimes or the deficiencies of his character that had led to his crimes. The year he had passed at liberty during the break in his preventive detention did not prove the opposite, although he had not reoffended during that period of time. The applicant had already abstained from committing crimes for longer periods of time in the past, but had nevertheless continued to commit, among other criminal offences, serious crimes against the physical integrity of his female partners when they had ended their relationship with him. The period of one year at liberty was therefore too short to prove that the applicant was no longer dangerous. In this regard the court referred to the reasoning of its decision of 27 May 2008 and the expert opinion of Prof Dr B. and S. on which that decision was based.

The court was of the view that the prognosis with regard to the possibility that the applicant would reoffend had not significantly changed since its decision of 27 May 2008. The written statement of the prison authorities of 6 March 2009 showed that the applicant lacked any willingness to cooperate. Since his readmission to preventive detention he had refused any substantial discussion about his crimes that might help to overcome the probability of his re-offending in the future.

The court found that, although the way the prison authorities executed the applicant ’ s preventive detention showed some deficiencies, it was mostly the applicant ’ s refusal of any constructive cooperation with the prison authorities that prevented any visible and provable change in his character and behaviour.

The court recognised that the applicant had voluntarily undergone psychological treatment with the psychologist So. while at liberty. However, it considered that there was no proof of the success of this treatment and that the fact alone that the applicant had received treatment was insufficient to prove that the probability of his reoffending had diminished. Instead, the way the applicant treated other people, notably the people working in the detention centre, showed that his attitude and his character had not changed and that he was still unwilling to cooperate.

Moreover, the court found that, although the prison authorities had, without giving proper reasons, refused to grant the applicant escorted short ‑ term leave from prison, especially short-term leave for the purpose of meeting his external therapist So., such deficiencies in the execution of the preventive detention did not justify the release of the applicant. The court recognised that accompanied leave was necessary in order to enable the applicant in the long run to prove his capacity to live at liberty again without committing further crimes and that the undue denial of such possibility unduly restricted the applicant ’ s chance to regain his liberty. However, the court was of the view that, even if the applicant had been granted the necessary leave since his readmission into preventive detention, the time would have been too short to prove that he was able to live at liberty again without representing a danger to others. Therefore, the further detention of the applicant was not yet excessive and would only become so in the future if the prison authorities continued to refuse such leave.

The court was further of the view that the Regional Court ’ s decision not to commission a new medical expert opinion was lawful. As explained above, a new psychiatric expert would not be confronted with a significantly different situation to the one Prof Dr B. and S. had found when they gave their expertise, as the applicant ’ s refusal to cooperate and to accept further psychological treatment inside the detention centre showed that the therapy with So. had not significantly changed his character and behaviour.

(c) The decision of the Federal Constitutional Court

The applicant lodged a constitutional complaint against the decisions of the Berlin Regional Court and the Berlin Court of Appeal claiming that his constitutional rights to liberty and to a fair trial had been infringed. He argued, in particular, that his preventive detention had been based on an outdated psychiatric expert opinion that had been issued before he had spent almost one year at liberty.

On 16 June 2010 the Federal Constitutional Court refused to admit the complaint for examination without giving any reasons (file no. 2 BvR 903/10).

3. Other developments

(a) The proceedings concerning the applicant ’ s request to be granted escorted short-term leaves for external psychological treatment

On 24 March 2010, upon the applicant ’ s appeal, the Berlin Court of Appeal quashed the prison authorities ’ and the Regional Court ’ s decision refusing him short-term leaves for continuing his psychological treatment with So. since October 2008 and ordered the prison authorities to grant the applicant escorted short-term leave at least every second week in order to undergo further psychiatric treatment with the external psychiatric expert So. The Court of Appeal found that successful psychological treatment was essential in order to give the applicant the possibility to be released in the future. There was no need for an expert opinion on whether it was too dangerous to grant the applicant escorted short-term leave. The prison authorities had already granted the applicant escorted short-term leave for other purposes without considering that he would flee or misuse such an opportunity. Hence there was no reason to refuse escorted short ‑ term leave for the purpose of attending the treatment with So.

The applicant was enabled to attend psychological treatment with So. until his relationship of trust with the psychologist came to an end in September/October 2010.

The applicant ’ s subsequent requests to be granted access to treatment with the external psychiatric expert Dr P. were turned down by the prison authorities, although the Berlin Regional Court quashed the decisions of the prison authorities on 11 November 2011, 22 December 2011 and 4 May 2012 and ordered the authorities to grant the applicant access to such treatment.

(b) Subsequent reviews of the applicant ’ s preventive detention

On 6 January 2012 the Regional Court decided that the applicant still could not be released from preventive detention despite the fact that the prison authorities still unlawfully refused to grant him escorted short-term leave for the purpose of external psychiatric treatment.

On 18 May 2012 the Berlin Court of Appeal found in an interim decision that, despite the delays in the periodical proceedings for review of the applicant ’ s preventive detention, the applicant ’ s preventive detention was not to be interrupted.

On 22 May 2012 the Berlin Regional Court issued its decision in the fresh main periodical review proceedings. It held that the execution of the preventive detention was to be suspended on probation as from 20 November 2013, ordered the applicant ’ s probationary supervision for five years and various other obligations that had to be followed by the applicant. The court ruled, inter alia, that the applicant was to stay away from his former external psychologist So. and her family and avoid any contact, as he had started to stalk and threaten her with e-mails and telephone calls.

The court held, in accordance with the new external expert opinion by Dr P. that, although the probability that the applicant would reoffend at liberty was still high, it was possible to release the applicant on probation after a preliminary period of about one year, if the pre-operational phase was mastered by the applicant without further problems. As the prison authorities had ignored and boycotted the orders of the court to grant the applicant access to external psychological treatment for years, and in a way the court had never experienced before and which the court found to be unconstitutional, the applicant ’ s interest in being at liberty now outweighed the public interest.

The decision was upheld on appeal.

B. Relevant domestic law

1. Provisions on criminal responsibility

Articles 20 and 21 of the Criminal Code regulate criminal incapacity and diminished criminal responsibility of a defendant. They read in their relevant parts as follows:

Article 20 Criminal incapacity on account of mental disorders

“Any person who at the time of the commission of the offence is incapable of understanding the unlawfulness of his or her actions or of acting in accordance with any such understanding on account of a pathological mental disorder, a profound consciousness disorder, mental deficiency or any other serious mental abnormality, shall be deemed to have acted without guilt. ”

Article 21 Diminished criminal responsibility

“If the capacity of the offender to understand the unlawfulness of his or her actions or to act in accordance with any such understanding is substantially diminished at the time of the commission of the offence for one of the reasons indicated in Article 20, the sentence may be mitigated [ ... ].”

2. Provisions on the review of preventive detention orders

The order for the execution of preventive detention and the review of preventive detention orders are regulated by Article 67c, Article 67d and Article 67e of the Criminal Code which read in their relevant parts in the version applicable to the proceedings in issue:

Article 67c Deferred start date of detention

“(1) If a term of imprisonment is executed prior to a custodial measure ordered at the same time, the court shall review, before the completion of the prison term, whether the purpose of the measure still requires its enforcement. If it does not, the court shall suspend the measure for an operational probationary period; the order for suspension shall automatically lead to the person being subject to supervision. ... ”

Article 67d Duration of detention

“ ...

(2) If there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation 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. Suspension shall automatically entail supervision of the conduct of the offender.”

Article 67e Review

“(1) The court may review at any time whether the further enforcement of the custodial measure should be suspended or the measure be declared terminated. It must perform the review within specified periods.

(2) The specified review periods shall be ... two years for a custodial order concerning preventive detention. ... ”

3. Relevant provisions of the Code of Criminal Procedure

Article 454

“ ...

(2) The court shall obtain the opinion of an expert concerning the convicted person if it considers suspending execution of the remainder of

1. a sentence of life imprisonment, or

2. a determinate prison sentence of more than two years [ ... ] if it cannot be ruled out that reasons of public security might preclude the convicted person ’ s early release.

The opinion shall, in particular, express a view as to whether a risk that the convicted person still poses the danger apparent from his offence no longer exists. ... ”

Article 458

“(1) A court decision shall be obtained [ ... ] if objections are raised against the lawfulness of the execution of a sentence.

[ ... ]

(3) The course of execution shall not be hindered as a result of this; the court may, however, order [ ... ] interruption of the execution. ...”

Article 463

“(1) The provisions on execution of sentence shall apply mutatis mutandis to the execution of measures of correction and prevention unless otherwise provided.

[ ... ]

(3) [ ... ] Insofar as the court is called upon to decide upon execution of preventive detention, Article 454 § 2 shall be applicable mutatis mutandis in the cases referred to in Article 67d § 2 [ ... ]. ... ”

COMPLAINTS

Relying on Article 5 § 1 and Article 6 § 1 of the Convention, the applicant complained of the execution of the preventive detention order against him in the proceedings at issue. He argued that his preventive detention had not been in accordance with the domestic law as there had been no clear prognosis about the danger he represented. Furthermore, his preventive detention had been arbitrary and had not been cov ered by sub ‑ paragraphs (a) or (c) of Article 5 § 1 as there had no longer been a causal link between the original conviction and the detention in issue. His preventive detention had been based on an old and insufficient psychiatric expert opinion that had been issued before he had spent almost one year at liberty. Furthermore, when deciding about his further detention, the domestic courts had not accorded sufficient value to the fact that he had spent almost one year at liberty, voluntarily undergoing psychological treatment and abstaining from committing any criminal offence during that time. The courts ’ establishment of facts could hence not serve as a reliable prognosis of the danger he represented for the public at the moment of the periodical review decisions in issue.

In addition, the detention had been arbitrary as he had been denied access to the external psychologist So., with whom he had established a trustful therapeutic relationship during his time at liberty. The denial of access to this therapist had shattered the efforts he had made while at liberty, had deprived him of his chance to prove that he was no longer dangerous for society and had contravened the original purpose of the conviction to preventive detention.

Furthermore, basing the decision on the outdated expert opinion, and denying him access to the external therapist So., had rendered the review proceedings unfair.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty during the period between 12 October 2009 and 6 January 2012 fall within sub ‑ paragraph (a) or any other of the sub-paragraphs of this provision?

And was this respective period of the applicant ’ s preventive detention “lawful” in the meaning of Article 5 § 1 of the Convention? In particular, did the fact that the applicant was denied the continuation of his external psychological treatment affect the lawfulness of the applicant ’ s detention at issue?”

2. Was the procedure by which the applicant sought to challenge the lawfulness of his preventive detention and which resulted in the courts ’ decisions of 12 October 2009 and 24 March 2010 in conformity with Article 5 § 4 of the Convention?

In particular, was the requirement of fairness complied with in view of the fact that the expert opinion on which the review decisions in question were based had been drawn up in 2005/2006?