Communicated on 22 December 2014

FIFTH SECTION

Application no. 27505/14 Daniel ILNSEHER against Germany lodged on 4 April 2014

STATEMENT OF FACTS

The applicant, Mr Daniel Ilnseher , is a German national, who was born in 1978 and is currently detained in the centre for persons in preventive detention on the premises of Straubing Prison . He is represented before the Court by Mr I.-J. Tegebauer , a lawyer practising in Trier .

A. The circumstances of the case

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

1. Background to the case: The applicant ’ s conviction and the first order for his retrospective preventive detention

On 29 October 1999 the Regensburg Regional Court convicted the applicant, a first offender, of murder and, applying the criminal law relating to young offenders, sentenced him to ten years ’ imprisonment (the maximum sentence under that law). It found that the applicant, then aged nineteen, had killed a thirty-one-y ear-old woman in June 1997. The applicant had strangled the woman, who was jogging on a forest path, after a fight lasting several minutes, had undressed the dead or dying woman partly and had then masturbated. Having consulted two experts, the court further considered that the applicant, who did not suffer from a mental illness, had acted with full criminal responsibility.

On 22 June 2009 the Regensburg Regional Court , with the participation of judge P., ordered the applicant ’ s retrospective prevent ive detention under Article 7 § 2 no. 1 of the Juvenile Courts Act, read in conjuncti on with Article 105 § 1 of the Juvenile Courts Act (see Relevant domestic law and practice below). The court found, in particular, that the applicant was still suffering from violent sexual phantasies and that there was a high risk that the applicant would again commit serious sexual offences, including murder for sexual gratification, if released .

On 9 March 2010 the Federal Court of Justice dismissed the applicant ’ s appeal on points of law against the Regional Court ’ s judgment of 22 June 2009 as ill-founded.

On 4 May 2011 the Federal Constitutional Court, in a leading judgment, allowed the applicant ’ s constitutional complaint. It quashed the Regional Court ’ s judgment of 22 June 2009 and the Federal Court of Justice ’ s judgment of 9 March 2010 and remitted the case to the Regional Court. The Federal Constitutional Court found that the impugned judgments violated the applicant ’ s right to liberty and the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law (see in detail Relevant domestic law and practice below).

On 6 May 2011 the Regensburg Regional Court ordered the applicant ’ s provisional preventive detention , pending a fresh decision on his retrospective preventive detention. That decision was confirmed on appeal. The proceedings before the domestic courts concerning this provisional preventive detention are the subject-matter of application no. 10211/12, lodged by the applicant with this Court on 24 February 2012 and communicated to the Government on 26 November 2013.

2. The proceedings at issue

(a) The proceedings before the Regensburg Regional Court

(i) The decision on the applicant ’ s motion for bias

In the resumed proceedings before the Regensburg Regional Court following the remittal of the case to it, the applicant lodged numerous motions for bias against the three judges of the court, and in particular a motion for bias against judge P. The latter had been a member of the Regensburg Regional Court which ordered the applicant ’ s retrospective preventive detention on 22 June 2009. The applicant claimed that judge P. had said to the applicant ’ s female defence counsel on 22 June 2009 , immediately after the delivery of the Regional Court ’ s judgment ordering the applicant ’ s retrospective preventive detention, by reference to the applicant : “Be careful that, when released, he will not be standing in front of your door and then thank you.” He claimed that the statement had been made in the course of a discussion between the judges and the applicant ’ s two defence counsel in camera concerning the applicant ’ s possible transfer to a psychiatric hospital following the Regional Court ’ s judgment.

I n his comment of 13 December 2011 on the applicant ’ s motion for bias, judge P. explained that he remembered having had a discussion about the applicant ’ s possible transfer to a psychiatric hospital at a later stage after the delivery of the judgment. However, given the lapse of time, he neither recalled the exact context in which he had allegedly made the impugned statement nor the precise contents of the discussion.

On 2 January 2012 the Regensburg Regional Court dismissed the applicant ’ s motions for bias. The court considered, in particular, that, even assuming that the applicant had established to the satisfaction of the court that judge P. had made the statement in question, there were no objectively justified doubts as to P. ’ s impartiality as a result thereof. Even assuming that the applicant could reasonably consider the sense of “thank you” in the above context as meaning that the applicant would commit a violent offence, it had to be noted that the Regional Court, including judge P., had just established that the applicant still suffered from phantasies of sexual violence and that there was currently a high risk that he would again commit serious offences against the life and sexual self-determination of others. Assuming that judge P. had made the statement in question, his “advice” was therefore in substance nothing more than the consequent application of the Regional Court ’ s said findings to a particular case. The statement had further been made in the context of a confidential exchange between the participants in the proceedings in the absence of the applicant. Judge P. could expect that the applicant ’ s female counsel could understand his statement in the above-mentioned manner in that context.

Furthermore, judge P. ’ s statement reflected his view on the day of the Regional Court ’ s judgment of 22 June 2009. It did not suggest in any way that judge P. was not ready to take an impartial decision in the present proceedings, some two years after the impugned statement and following the conclusion of a new main hearing. The fact that judge P. had previously dealt with the applicant ’ s case alone did not render him partial.

(ii) The new order for the applicant ’ s retrospective preventive detention

On 3 August 2012 the Regensburg Regional Court, having consulted two psychiatric experts, again ordered the applicant ’ s retrospective detention under Articles 7 § 2 no. 1 and 105 § 1 of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court ’ s judgment of 4 May 2011.

The Regional Court found that, as required by Article 7 § 2 no. 1 of the Juvenile Courts Act read in conjunction with Article 105 § 1 of the Juvenile Courts Act , the applicant, a young adult at the time, had been imposed a sentence relating to young offenders of at least seven years for murder, a felony against li f e by which the victim had suffered grave damage .

Moreover, a comprehensive assessment of the applicant , his offence and, in addition, his development during the execution of the sentence relating to young offenders revealed that there was a high risk that the applicant, owing to specific circumstances relating to his person or his conduct, would commit the most serious crimes of violence and sexual offences , as required by Articles 7 § 2 no. 1 of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court ’ s judgment of 4 May 2011.

The Regional Court had consulted two external psychiatric experts, K. and F., who had to draw up their reports on the basis of the case-files and following their presence at the hearing because the applicant had refused to have himself examined. Having regard to the findings of these experts, as well as to the findings of several experts who had previously examined the applicant since his arrest following his offence, the Regional Court found that the applicant has had phantasies of sexual violence entailing the strangulation of women since the age of seventeen. He was suffering from a sexual preference disorder, namely sexual sadism , as defined by the relevant tool for the classification of diseases, the ICD-10 [1] , which had caused and materialized in his brutal offence and which still persisted. The therapies the applicant had made until 2007, in particular a social therapy, had not been successful. Even though he appeared ready, in principle, to participate in further therapies, he was not currently making a therapy. There was a high risk that the applicant would commit another serious offence similar to the one he had been found guilty of if released.

The Regional Court further found that the applicant suffered from a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act (see Relevant domestic law and practice below) . Having regard to the case-law of the Federal Court of Justice and the Federal Constitutional Court, it considered that, whereas a mere accentuation of the personality was not sufficient to constitute a mental disorder within the meaning of the said Act, such disorder did not have to be so serious as to exclude or diminish the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see Relevant domestic law and practice below). Given that the applicant ’ s sexual sadism was of a serious nature and had substantially affected the applicant ’ s development since his adolescence, it amounted to a mental disorder within the meaning of the Therapy Detention Act.

The Regional Court further noted in that context that it did not have jurisdiction to decide whether, as proposed by expert K., the applicant ’ s preventive detention should be executed in a psychiatric hospital under Article 67a §§ 2 and 1, read in conjunction with Article 63 of the Criminal Code (see Relevant domestic law and practice below). It was for the courts dealing with the execution of sentences to decide on that issue at a later stage.

The applicant ’ s preventive detention was also proportionate. In particular, less intrusive measures such as the supervision of his conduct after release, including the obligation to undergo therapy and the electronic surveillance of his whereabouts, were not sufficient to substantially reduce the applicant ’ s dangerousness.

The Regional Court also considered that the European Court of Human Rights had confirmed in its judgment of 19 January 2012 (case of Kronfeldner v. Germany , no. 21906/09 ) that the Federal Constitutional Court had fully implemented the European Court of Human Rights ’ findings concerning the compliance with Articles 5 and 7 of the Convention of German preventive detention. The Federal Constitutional Court ’ s order in its judgment of 4 May 2011 for the continued application of the provisions it considered incompatible with the Constitution, including Article 7 § 2 of the Juvenile Courts Act, had the force of law and constituted the legal basis for interferences with the right to liberty during the transitional period until 31 May 2013.

(b) The proceedings before the Federal Court of Justice

In his appeal on points of law against the Regional Court ’ s judgment of 3 August 2012, the applicant complained about the unlawfulness of his retrospective preventive detention and about the fact that the judgment had been given with the participation of a biased judge, P.

On 5 March 2013 the Federal Court of Justice dismissed the applicant ’ s appeal on points of law as ill-founded.

(c) The proceedings before the Federal Constitutional Court

On 11 April 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the retrospective order for his preventive detention, which had not been possible under the law applicable at the time of his offence and conviction, failed to comply with the prohibition on retrospective penalties under the Constitution and Article 7 § 1 of the Convention, with the right to liberty and the protection of legitimate expectations in a State governed by the rule of law and with Article 5 § 1 of the Convention. He further argued that his constitutional right to a tribunal established by law had been violated because that judge P. had been biased against him. The latter had shown by his statement towards his defence counsel that he considered that the applicant could not but commit offences similar to the one he had been found guilty of.

On 5 December 2013 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint without giving reasons (file no. 2 BvR 813/13).

3. The conditions of the applicant ’ s detention during the execution of the preventive detention order

On 6 May 2011, following the renewed order for the applicant ’ s provisional preventive detention, the applicant was transferred from the wing for persons in preventive detention in Straubing Prison to a wing for persons in detention on remand in which he was detained until 13 September 2011. He was subsequently again detained in a wing for persons in preventive detention in Straubing Prison until June 2013.

From June 2013 onwards the applicant has been detained in the newly built centre for persons in preventive detention on the premises of Straubing Prison. In that institution, which could receive up to 84 detainees, 41 members of prison staff, seven psychologists, seven social workers, a psychiatrist, a general practitioner , a lawyer and four members of the administrative staff were in charge of the detainees. Inmates could stay outside their cells which now measured 15 square metres between 6.00 a.m. and 11.30 p.m.

Since the applicant ’ s social therapy had been terminated without success in 2007, he has not made any further therapy.

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, is contained in the Court ’ s judgment in the case of M. v. Germany ( no. 19359/04, §§ 45-78 , ECHR 2009 ). The provisions referred to in the present case provide as follows:

1. Preventive detention orders against juveniles and young adults

Initially, the Juvenile Courts Act did not authorise orders for preventive detention against juveniles and against young adults to whom the criminal law relating to young offenders was applied.

By the Act on the introduction of retrospective preventive detention for convictions under the criminal law relating to young offenders ( Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht) of 8 July 2008, which entered into force on 12 July 2008 , Article 7 § 2 was inserted in the Juvenile Courts Act.

Article 7 § 2 of the Juvenile Courts Act, in the version in force until 31 May 2013, provided:

“If, following conviction to a sentence relating to young offenders of at least seven years for or also for a felony

1. against life, physical integrity or sexual self-determination or

2. ...

by which the victim either suffered grave mental or physical damage or was exposed to a risk of suffering such damage, there is evidence prior to the end of enforcement of the sentence relating to young offenders which indicates that the convicted person presents a significant danger to the general public, the court may order preventive detention retrospectively if a comprehensive assessment of the convicted person, his offence or offences and, in addition, his development during the execution of the sentence relating to young offenders reveals that it is very likely that he will again commit offences of the nature described above.”

Article 105 § 1 of the Juvenile Courts Act provides that the court applies certain provisions of that Act relating to juveniles (persons aged between fourteen and eighteen) if a young adult aged between eighteen and twenty ‑ one commits an offence and if, in particular, a comprehensive assessment of the perpetrator ’ s personality, taking into account his living environment, demonstrated that the perpetrator had the moral and intellectual development of a juvenile at the time of his offence.

2. Provisions on criminal liability

Article 20 of the Criminal Code contains rules on the lack of criminal responsibility owing to mental disorders. It provides that a person who, upon commission of an act, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality acts without guilt.

Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that the punishment may be mitigated if the perpetrator ’ s capacity to appreciate the wrongfulness of the act or of acting in accordance with such appreciation is substantially diminished upon commission of the act owing to one of the reasons indicated in Article 20 of the Criminal Code.

3. Transfer for enforcement of a different measure of correction and prevention

Article 67a of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, of the Criminal Code, the court may subsequently transfer a person against whom preventive detention was ordered to a psychiatric hospital or to a detoxification facility if the person ’ s reintegration into society can be better promoted thereby.

4. The detention of mentally ill persons

The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his act reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.

Furthermore, on 1 January 2011, following the Court ’ s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Therapy Detention Act – Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter ) entered into force. Under sections 1 § 1 and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person ’ s detention must be necessary for the protection of the public.

5. The Federal Constitutional Court ’ s leading judgment on preventive detention of 4 May 2011

On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants ’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant ’ s preventive detention under Article 66b § 2 of the Criminal Code and Article 7 § 2 of the Juvenile Courts Act (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.

The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code and of the Juvenile Courts Act on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( Abstandsgebot ).

The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged retrospectively, or ordered retrospectively under Article 66b § 2 of the Criminal Code or Article 7 § 2 of the Juvenile Courts Act, the courts dealing with the execution of sentences had to examine without delay whether it was highly likely that the persons concerned, owing to specific circumstances relating to their person or their conduct, 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. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court ’ s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court ’ s judgment). If the above pre-conditions were not met, those detainees had to be released no l ater than 31 December 2011.

Having regard to the constitutional protection of legitimate expectations in a State governed by the rule of law and the valuations of Article 5 and Article 7 of the Convention, the retrospective order of preventive detention under Article 7 § 2 of the Juvenile Courts Act, in particular, was only constitutional in practice if, inter alia , the requirements of Article 5 § 1 (e) were met (ibid., §§ 143 and 151-156). The Federal Constitutional Court expressly referred in that context to the case-law of the European Court of Human Rights according to which the detention of a person as a mental health patient would only be lawful for the purposes of Article 5 § 1 (e) of the Convention if effected in a hospital, clinic or other appropriate institution (ibid., § 155).

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his detention resulting from the retrospective order for his preventive detention by the Regensburg Regional Court on 3 August 2012 violated his right to liberty . It was not justified under any of the sub-paragraphs (a) to (f) of Article 5 § 1. Relying on the Court ’ s findings in the case of M. v. Germany ( no. 19359/04, ECHR 2009 ), the applicant argues, in particular, that his detention failed to comply with sub-paragraph (a) of Article 5 § 1. That detention was further not justified under sub-paragraph (e) of Article 5 § 1 because he was not “of unsound mind” and because he had not been detained in an institution suitable for mental health patients throughout his detention at issue.

In the applicant ’ s submission, his retrospectively ordered preventive detention further breached his right guaranteed by Article 7 § 1 of the Convention not to have a heavier penalty imposed than the one applicable at the time of his offence in June 1997.

Moreover, the applicant claims that his right to an impartial tribunal under Article 6 § 1 of the Convention was disregarded in the proceedings at issue. He argues that judge P. was subjectively biased against him because, following the delivery of the Regional Court ’ s judgment of 22 June 2009, the judge had warned his former female counsel to be careful that, when released, he would not be standing in front of her door and thank her in person. Judge P. had therefore shown to consider the applicant capable of committing a serious violent or sexual offence against his counsel.

QUESTIONS TO THE PARTIES

1. W as the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention in so far as he was remanded in retrospective preventive detention as a result of the proceedings at issue ?

In particular, having regard to the Court ’ s case-law in the case of M. v. Germany ( no. 19359/04, ECHR 2009) and a number of follow-up cases (see, in particular, Kallweit v. Germany , no. 17792/07 , 13 January 2011 ; O.H. v. Germany , no. 4646/08 , 24 November 2011 ; Kronfeldner v. Germany , no. 21906/09 , 19 January 2012 ; and Glien v. Germany , no. 7345/12 , 28 November 2013 ), did that deprivation of liberty fall within any of the sub-p aragraphs (a) to (f) of Article 5 § 1?

2. T aking into consideration, in particular, the Court ’ s conclusions in its judgment in the case of M. v. Germany (cited above) , w as a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of the offence in the present case, as proscribed by Article 7 § 1 of the Convention?

3. What were the exact conditions of the execution of the applicant ’ s preventive detention in practice during the period covered by the proceedings here at issue? In particular, which treatment and care was offered to the applicant, having regard to the fact that the domestic courts had diagnosed him with sexual sadism, and which treatment did the applicant actually undergo at the relevant time?

4 . Was the procedure at issue by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention? In particular, was the Regensburg Regional Court, which dealt with the applicant ’ s case and included judge P., impartial , as required by that provision ?

[1] International Statistical Classification of Diseases and Related Health Problems in its current version.