Communicated on 3 September 2014

FIFTH SECTION

Application no. 40087/14 M. W. against Germany lodged on 26 May 2014

STATEMENT OF FACTS

The applicant, Mr M. W., is a German national, who was born in 1982 and is currently detained in Straubing Prison . He is represented before the Court by Mr A. Ahmed , a lawyer practising in Munich .

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 conviction and the execution of his sentence

On 5 February 2003 the Augsburg Regional Court convicted the applicant of murder. Applying the law relating to young offenders, it sentenced him to the maximum sentence of ten years ’ imprisonment.

The Regional Court found that the applicant, aged nineteen, had killed a twelve-year-old girl in the night of 11/12 February 2002 treacherously and for base motives with a knife. Disguised as “death” for carnival, the applicant, who had drunk some three litres of beer during the evening, had entered the house in which the girl, whom and whose family he did not know, lived. He had then stabbed the sleeping girl in the back at least twenty-one times without any plausible motive, possibly inspired by horror films he had been watching regularly.

The Regional Court, which had consulted a psychiatric expert (G.) and a psychological expert (W.), found that the applicant ’ s criminal responsibility had not been diminished for the purposes of Article 21 of the Criminal Code (see Relevant domestic law and practice below) as a result of alcohol consumption. Furthermore, even assuming that the applicant suffered from a personality disorder, the latter was not so serious as to be pathological and thus had not diminished the applicant ’ s criminal responsibility either.

The Regional Court further noted that no measures of correction and prevention could be imposed on the applicant. Article 106 § 2 of the Juvenile Courts Act ( Jugendgerichtsgesetz ) prohibited making a preventive detention order under Article 66 of the Criminal Code against the applicant, a young adult (see Relevant domestic law and practice below). Likewise, the applicant ’ s placement in a psychiatric hospital was not to be ordered under Article 63 of the Criminal Code as the applicant had not committed his crime with diminished criminal responsibility (Articles 20 and 21 of the Criminal Code; see Relevant domestic law and practice below).

During the execution of his sentence, the applicant initially had weekly therapy sessions with a psychiatric expert. From 7 August 2008 to 30 March 2011 the applicant made a social therapy in Erlangen Prison; he was subsequently retransferred to Straubing Prison where he had therapy sessions with a psychologist once in a fortnight.

On 16 February 2012 the applicant had served his full sentence. Since 17 February 2012 the applicant was in provisional preventive detention.

2. The proceedings at issue

(a) The decision of the Augsburg Regional Court

On 15 November 2012 the Augsburg Regional Court ordered the applicant ’ s preventive detention retrospectively under Article 7 § 2 of the Juvenile Courts Act, read in conjunction with Article 105 § 1 of that Act and Article 316e § 1 of the Introductory Act to the Criminal Code (see Relevant domestic law and practice below).

The Regional Court found that pursuant to Article 316e § 1 of the Introductory Act to the Criminal Code, Article 7 § 2 of the Juvenile Courts Act in the version adopted on 8 July 2008 was still applicable as the applicant had committed the offence because of which preventive detention was to be ordered prior to 1 January 2011.

Furthermore, the requirements under Article 7 § 2 no. 1 of the Juvenile Courts Act for ordering the applicant ’ s preventive detention retrospectively were met. The applicant had been convicted on 5 February 2003 by the Augsburg Regional Court to a sentence relating to young offenders of ten years for a felony against live, murder. Moreover, there wa s evidence prior to the end of enforcement of his sentence which indicate d that he present ed a significant danger to the general public . A comprehensive assessment of his person, his offence and, in addition, his development during the execution of the sentence reveal ed that it wa s very likely that he would again commit a similarly serious offence.

The Regional Court further considered that the stricter requirements set up in the Federal Constitutional Court ’ s judgment of 4 May 2011 (see Relevant domestic law and practice below) were equally met. It was highly likely that the applicant , owing to specific circumstances relating to his person or his conduct, would commit the most serious crimes of violence . A dditionally, he suffered from a mental disorder within the meaning of Article 5 § 1 (e) of the Convention, as transferred into section 1 § 1 of the newly enacted Therapy Detention Act (see Relevant domestic law and practice below) .

As to the applicant ’ s dangerousness, the Regional Court made its finding that it was highly likely that the applicant would against commit the most serious crimes of violence if released having regard to the reports submitted to it by psychiatric expert S. (the examination by whom the applicant had refused) and psychological expert K. (who had examined the applicant in person) and by endorsing the findings of expert S. The court noted, in particular, that the motive for the applicant ’ s particularly brutal crime, which was still unclear, and the applicant ’ s persisting phantasies of violence had not been sufficiently worked on in a therapy. There was also a risk that, if under stress, the applicant would again consume alcohol and video films excessively and thus resume a conduct which had preceded the murder he had been found guilty of.

Moreover, the Regional Court considered that the applicant suffered from a mental disorder as defined by section 1 § 1 of the Therapy Detention Act, which transferred the requirements under Article 5 § 1 (e) of the Convention into domestic law. The notion of mental disorder under the Therapy Detention Act covered a large range of disorders which, from a psychiatric point of view, were only partly to be classified as mental illnesses. It was notably not necessary that the criminal responsibility of the person concerned was diminished within the meaning of Articles 20 and 21 of the Criminal Code. A mental disorder for the purposes of the said provision therefore covered personality or conduct disorders which went beyond mere social differences and had an effect on the conduct of life by the person concerned, without necessarily amounting to a pathological mental disorder. Having regard to the reports of experts S. and K., the Regional Court found that the applicant suffered from a combined personality disorder, as defined by the relevant tool for the classification of diseases, the ICD-10 [1] , with schizoid, dissocial, negativist and emotionally instable elements. That disorder went beyond a mere accentuation of the personality or a social difference, impaired the applicant ’ s conduct of life and was therefore a mental disorder for the purposes of section 1 § 1 no. 1 of the Therapy Detention Act. The Regional Court had regard to the fact that expert S. had considered this disorder as pathological and as necessitating a therapy. In expert K. ’ s view, in contrast, the applicant ’ s personality disorder was not so serious as to necessitate his continuing detention.

The Regional Court further found that the applicant was not to be transferred to a psychiatric hospital. It noted that expert S. and, previously, expert U. had considered that the applicant should have been placed in a psychiatric hospital. However, there was no legal basis for it to order the applicant ’ s detention in a psychiatric hospital at the present stage. Article 67a § 2 of the Criminal Code (see Relevant domestic law and practice below) only permitted the courts dealing with the execution of sentences to order the applicant ’ s subsequent transfer from preventive detention to a psychiatric hospital, following an order for his preventive detention by a criminal court.

(b) The decision of the Federal Court of Justice

On 15 November 2012 the applicant lodged an appeal on points of law with the Federal Court of Justice. He argued, in particular, that the order for his preventive detention failed to comply with the requirements of Articles 5 and 7 of the Convention and with those set up by the Federal Constitutional Court. He claimed, in particular, that it had not been proven that he suffered from a “true mental disorder” as required by Article 5 § 1 (e) of the Convention. In any event, a combined personality disorder, if proven, would not be sufficiently serious so as to justify the order for his preventive detention. Moreover, retrospectively ordered preventive detention, a penalty, was in breach of Article 7 § 1 of the Convention.

On 7 August 2013 the Federal Court of Justice dismissed the applicant ’ s appeal on points of law as ill-founded. The decision was served on the applicant ’ s counsel on 19 August 2013.

(c) The decision of the Federal Constitutional Court

On 18 September 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that the retrospective order for his preventive detention, a penalty, failed to comply with his right to liberty, with the protection of legitimate expectations in a State governed by the rule of law and with the prohibition on retrospective punishment as protected by the Basic Law and by Articles 5 and 7 of the Convention. H e further argued that the criminal courts did not have sufficiently regard to the requirements set up by the Federal Constituti onal Court in its judgment of 4 May 2011.

On 5 December 2013 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 2062/13). The decision was served on the applicant ’ s counsel on 12 December 2013.

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

Since his transfer from Erlangen Prison on 30 March 2011, the applicant has been detained in Straubing Prison. Since summer 2012 the applicant has no longer been working in prison as his salary was used to settle his debts. He has pursued his therapy sessions with a psychologist once in a fortnight.

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

(a) Applicable provisions at the time of the applicant ’ s offence

Initially, the Juvenile Courts Act did not authorise orders for preventive detention against juveniles (aged between fourteen and eighteen years ) and young adults (aged between eighteen and twenty-one years) . Article 106 § 2 of the Juvenile Courts Act, in the version in force at the time of the applicant ’ s offence and conviction, in particular, provided that preventive detention could not be ordered against young adults.

(b) Applicable provisions at the time of the order for the applicant ’ s retrospective preventive detention

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 live, 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 316e § 1 of the Introductory Act to the Criminal Code, in the version applicable at the relevant time, provided that the law in force before 1 January 2011 remained applicable if the offence(s) because of which preventive detention was to be ordered had been committed before that date, unless the law provided otherwise.

Article 105 § 1 of the Juvenile Courts Act provides that the court applies certain provisions of that Act relating to juveniles 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 the offence.

Under Article 7 § 4 of the Juvenile Courts Act, in the version in force until 31 May 2013, the courts were obliged to examine in yearly intervals whether the preventive detention order may be suspended and a measure of probation applied.

(c) Subsequent amendments

Article 7 of the Juvenile Courts Act in the version in force since 1 June 2013 no longer provides for retrospective orders for a person ’ s preventive detention unless that order follows termination of the offender ’ s placement in a psychiatric hospital.

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. 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 (Article 20 of the Criminal Code) or with diminished criminal responsibility (Article 21 of the Criminal Code), the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts 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.

4. 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.

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 later than 31 December 2011. The Federal Constitutional Court further ordered that the time-limit for review of the necessity of a continuous preventive detention under Article 7 § 4 of the Juvenile Courts Act was reduced from one year to six months.

In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law ( völkerrechtsfreundliche Auslegung ; ibid., § 89). It stressed that, in line with that openness of the Constitution to public international law, it attempted to avoid breaches of the Convention in the interpretation of the Constitution (ibid., §§ 82 and 89).

In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court ’ s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court ’ s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court ’ s judgment ).

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 preventive detention violated his right to liberty . As the Court found in its judgment in the case of M. v. Germany ( no. 19359/04, ECHR 2009 ), such detention was not justified, in particular, under sub-paragraph (a) of Article 5 § 1. Furthermore, it could no longer be considered as “lawful”, given that the Federal Constitutional Court, in its judgment of 4 May 2011, considered preventive detention as incompatible with the Basic Law.

The applicant further complains under Article 7 § 1 of the Convention that his preventive detention, a penalty ordered on the basis of a legal provision which entered into force after he had committed his offence, violated the his right not to have a heavier penalty imposed on him than the one applicable at the time of his offence . He relied on the Court ’ s judgment in the case of M. v. Germany ( cited above ) to support his view.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention 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? And were the applicant ’ s conditions of detention adapted during the relevant period so as to take account of the fact that he was considered as suffering from a mental disorder?

2. Taking into consideration, in particular, the Court ’ s conclusions in its judgments in the cases of M. v. Germany (cited above), K v. Germany (no. 61827/09, 7 June 2012) 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 the offence in the present case, as proscribed by Article 7 § 1 of the Convention?

3. Where and under which conditions was the applicant ’ s preventive detention resulting from the proceedings at issue executed? Did the way in which the preventive detention order against the applicant was executed change during the period of detention here at issue as a result of the entry into force , on 1 June 2013 , of the Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences ( Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung ) of 5 December 2012 ?

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