Communicated on 4 June 2014

FIFTH SECTION

Application no. 6281/13 Dirk PETSCHULIES against Germany lodged on 22 January 2013

STATEMENT OF FACTS

The applicant, Mr Dirk Petschulies , is a German national, who was born in 1952 and is currently living in a supervised residence in Springe . He is represented before the Court by Mr A. Alte , a lawyer practising in Osnabrück .

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

(a) Previous convictions

Between 1970 and 1976 the applicant was convicted five times for offences including burglary, theft, traffic offences, damage to property, trespass, assault and dangerous assault, which had often been committed under the influence of alcohol. He served several years in prison.

On 21 November 1977 the Hildesheim Regional Court convicted the applicant of having committed offences in a drunken state, sentenced him to one year ’ s imprisonment and ordered his detention in a psychiatric hospital under Article 63 of the Criminal Code ( see Relevant domestic law and practice below) . The court, having consulted a psychiatric expert, found that the applicant ’ s criminal responsibility had been diminished at the time of the act owing to an infantile brain damage combined with his drunkenness. The applicant was detained in Göttingen and Moringen psychiatric hospitals from 2 December 1977 until 16 October 1980.

On 17 September 1981 the Göttingen Regional Court, on a request for a reopening of the proceedings, quashed the judgment of the Hildesheim Regional Court of 21 November 1977. It convicted the applicant of intentional commission of offences in a drunken state and, including the sentence imposed for another burglary and assault, sentenced him to one year and eight months ’ imprisonment, without ordering his detention in a psychiatric hospital. The court, having regard to the findings of a psychiatric expert and to the results of a reexamination of the applicant ’ s brain by new technical means, found that the applicant did not suffer and had never suffered from a pathological mental disorder. He had therefore not acted with diminished criminal responsibility. The court considered that the applicant did not suffer from an infantile brain damage and was an abnormal personality, but neither a psychopath nor an alcoholic.

On 3 February 1982 the Hildesheim District Court convicted the applicant of attempted aggravated theft, committed four days after his release from detention, and sentenced him to ten months ’ imprisonment.

(b) The preventive detention order

On 11 December 1984 the Hildesheim Regional Court convicted the applicant of seven counts of dangerous assault, of four counts of assault, of coercion and of two counts of attempted coercion, committed between 6 December 1982 (shortly after his release from detention) and 1 May 1984. It sentenced him to six years ’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see Relevant domestic law and practice below).

The Regional Court found that the applicant had attacked his almost exclusively male victims, some of whom had been acquaintances, others of whom he had not previously known and who included pupils as well as persons present in pubs or randomly chosen on the street, in a violent manner. He had either hit his victims with his fists in the face, had kicked them in the face when they had fallen to the ground or had set an Alsatian dog on them which considerably injured the victims by bites, including bites in the stomach and neck. He had notably attacked two homeless persons unknown to him, who were sleeping in an abandoned building, with a knife and had injured the hand, lip, chest and thigh of one of them and the back and finger of the other. His victims had not given any objective cause for conflict.

The Regional Court, having consulted a psychiatric and a psychological expert, found that at the time of most of his offences, the applicant had acted with full criminal responsibility despite his prior consumption of alcohol. Only for two of his offences it could not be excluded that he had acted with diminished criminal responsibility (Article 21 of the Criminal Code, see Relevant domestic law and practice below) due to his alcohol intoxication. However, the consumption of alcohol had not been the cause for his offences. He did not suffer from another pathological mental disorder within the meaning of Article 21 of the Criminal Code. His personality differed from that of the majority of the population in that he saw himself as a strong and dominating man and lacked empathy, without that difference being of a pathological nature.

The Regional Court further found that, as required by Article 66 § 2 of the Criminal Code, the applicant had committed three intentional offences for each of which he incurred at least one year ’ s imprisonment and had been imposed a cumulative sentence exceeding three years ’ imprisonment for these offences. As had been confirmed by the psychiatric and the psychological expert consulted by the court, the applicant had a propensity to commit serious violent offences against others whereby the victims are considerably injured.

(c) The execution of the preventive detention order

On 7 May 1990 the applicant, having fully served his term of imprisonment, was placed for the first time in preventive detention, initially executed mainly in Salinenmoor Prison. In view of the execution of another three-months ’ prison sentence imposed for defamation, he had served ten years in preventive detention on 7 August 2000.

On 2 May 2001 the Hildesheim District Court convicted the applicant of assault, finding that he had slapped his daughter in the face under the influence of alcohol during a leave from detention, and sentenced him to four months ’ imprisonment. The applicant served that sentence in 2002.

On 25 August 2003 the applicant was transferred to the detoxification department of Moringen Hospital. In 2004, the applicant admitted having turned the nose of a fellow patient after the latter had hit his ribs.

By decision of 18 April 2005 the Regional Court ordered the further execution of the applicant ’ s preventive detention in a psychiatric hospital (Article 63 of the Criminal Code) instead of a detoxification facility as the applicant ’ s rehabilitation could be better promoted thereby. Thereupon, the applicant was transferred to the psychiatric department of Moringen Hospital.

The order for the applicant ’ s continued preventive detention, executed in a psychiatric hospital, was subsequently prolonged. In March 2011 the applicant was authorised to reside provisionally ( Probewohnen ) in Friedland castle in Northeim, a supervised residence ( betreute Einrichtung ).

2. The proceedings at issue

(a) The decision of the Göttingen Regional Court

On 19 July 2011 the Göttingen Regional Court again ordered the applicant ’ s preventive detention, executed in a psychiatric hospital, to continue under Article 67d § 3 of the Criminal Code (see Relevant domestic law and practice below), after the Braunschweig Court of Appeal, on 11 April 2011, had quashed the Göttingen Regional Court ’ s previous decision of 31 August 2010 to that effect.

The Regional Court found that the stricter criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011 for a person ’ s preventive detention to continue beyond the former ten-year time-limit during the transitional period until 31 May 2013 (see Relevant domestic law and practice below) were met in the applicant ’ s case.

The Regional Court considered that there was a high risk that the applicant, owing to specific circumstances relating to his person and his conduct, would commit the most serious crimes of violence if released from preventive detention. As had been required by the Court of Appeal in its decision of 11 April 2011, the Regional Court had again consulted a psychiatric expert, S., particularly on the specific risk emanating from the applicant. As had been confirmed by expert S., who had drawn up his supplementary report dated 24 April 2011 on the basis of the case-file as the applicant had refused an examination, there was a danger that the applicant, in particular when he was drunk, would again attack others in a life ‑ threatening manner, for instance by kicking his victims in the head or by setting a dog on them and inciting the latter to bites in the neck and face. The applicant had hardly any inhibitions to injure others as he lacked empathy and did not limit his use of force against randomly chosen victims who had not given any objective cause for conflict by their conduct.

Furthermore, the Regional Court 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) which were the cause for his previous offences. As had been found by psychiatric expert S., the applicant suffered from a dissocial personality disorder as defined by the relevant tools for the classification of diseases (in particular, the ICD-10) with marked psychopathic elements. This diagnosis had been confirmed by the applicant ’ s treating doctors in Moringen Hospital.

The Regional Court further considered that the applicant ’ s preventive detention was still proportionate. There was currently no residential accommodation outside preventive detention permitting to monitor closely the applicant ’ s conduct. It was already unclear whether the applicant would be permitted to continue residing in his current residence in Friedland castle in view of his conduct. Having regard to the high risk that the applicant would commit most serious violent offences on his release, the duration of the applicant ’ s preventive detention of more than twenty years was still reasonable.

The Regional Court confirmed that the applicant ’ s rehabilitation could still be promoted better by his placement in a psychiatric hospital than by a placement in a preventive detention facility (Article 67a §§ 1 and 2 of the Criminal Code, see Relevant domestic law and practice below). Even though there had not been any substantial change in the applicant ’ s disorder, there was a positive development in that the applicant had started residing provisionally in a supervised residence.

(b) The decision of the Braunschweig Court of Appeal

On 19 September 2011 the Braunschweig Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant ’ s appeal as ill ‑ founded.

(c) The decision of the Federal Constitutional Court

On 24 October 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that the continuation of his preventive detention, executed in a psychiatric hospital, ordered by the Göttingen Regional Court on 19 July 2011 and confirmed on appeal, had breached his constitutional right to liberty. He argued that the strict criteria set up by the Federal Constitutional Court in its leading judgment of 4 May 2011 for his preventive detention to continue were not met. Having regard to the fact that his offences, committed under the influence of alcohol, dated back 27 years, that he has not drunk alcohol since then and that he has been allowed extensive relaxations in the execution of his detention, the expert and the courts had not convincingly shown that there was a risk that he would again commit a serious violent offence if released. Moreover, it had never been found by the experts or the domestic courts that his alleged mental disorder had caused the offences at issue nor that he was or had ever been an alcoholic.

On 18 July 2012 the Federal Constitutional Court rejected the applicant ’ s request for legal aid and declined to consider the applicant ’ s constitutional complaint without giving reasons (file no. 2 BvR 2270/11).

The decision was served on the applicant ’ s counsel on 2 6 July 2012.

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

Following his transfer to the psychiatric department of the Moringen Hospital in April 2005, the applicant was granted relaxations in the conditions of his detention, including leaves under escort. In 2006 the applicant suffered a serious heart attack. Since he married a fellow patient in 2007, he has participated actively in discussions with the medical team. In 2010 the applicant was granted a four-hour leave twice per week to see his wife.

From March 2011 until the end of 2012, the applicant was authorised to reside provisionally in Friedland castle in Northeim, a supervised residence; he continued his work therapy in Moringen Hospital. He has since then been residing provisionally in Gestorf castle, a supervised residence in Springe.

B. Relevant domestic law and practice

1. Provisions on preventive detention and the execution thereof

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:

(a) The order of preventive detention by the sentencing court

The sentencing court may, at the time of the offender ’ s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code).

In particular, the sentencing court may order preventive detention in addition to the penalty under Article 66 § 2 of the Criminal Code if the person concerned committed three intentional offences for each of which he incurred a term of imprisonment of at least one year and if the person is sentenced for one or more of these offences to at least three years ’ imprisonment. In addition, a comprehensive assessment of the person and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the person presents a danger to the general public. It is not necessary under that provision that the perpetrator has been previously convicted or detained.

(b) Duration of preventive detention

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. If the maximum duration had expired, the detainee was to be released (Article 67d § 3).

Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended as applicable at the relevant time version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the offender ’ s conduct. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a (3) of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis .

(c) 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 (see Article 64 of the Criminal Code) if the person ’ s reintegration into society can be better promoted thereby. The court may quash that decision if it later emerges that no success can be achieved by placing the person in a psychiatric hospital or a detoxification facility (Article 67a § 3).

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 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 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. Recent case-law of the Federal Constitutional Court

(a) 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, in particular, the retrospective prolongation of the complainants ’ preventive detention beyond the former ten-year maximum period (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 the impugned provisions on the retrospective prolongation of preventive 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 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 ). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.

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 the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to 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 other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.

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).

The Federal Constitutional Court confirmed its constant case-law that the absolute ban on the retrospective application of criminal law under Article 103 § 2 of the Basic Law did not cover preventive detention. The latter was a measure of correction and prevention, which was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender (see §§ 100-101 and 141 ‑ 142 of the Federal Constitutional Court ’ s judgment). The Federal Constitutional Court noted that the European Court of Human Rights had considered preventive detention to be a “penalty” within the meaning of Article 7 § 1 of the Convention (ibid., §§ 102, 140). It considered that it was not necessary schematically to align the meaning of the constitutional notion of “penalty” to that under the Convention. Recourse should rather be had to the valuations ( Wertungen ) under the Convention in a result-oriented manner in order to prevent breaches of public international law (ibid., §§ 91 and 141 ss.).

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 prolongation of the complainants ’ preventive detention beyond the former ten-year maximum period, 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).

(b) The decision of 15 September 2011

In a decision of 15 September 2011 (file no. 2 BvR 1516/11), the Federal Constitutional Court, referring to its judgment of 4 May 2011 (cited above), reiterated that a prolongation of a person ’ s preventive detention beyond the former ten-year time-limit applicable at the time of his conviction was only possible if the requirements of Article 5 § 1 (e) of the Convention were met.

The Federal Constitutional Court further clarified that the notion of persons “of unsound mind” in Article 5 § 1 (e) of the Convention had been taken up by the legislator in section 1 § 1 o f the Therapy Detention Act. In that Act, the legislator had created a new category of “mental disorder” which did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code. Specific disorders in a person ’ s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act. This notion therefore was not limited to mental illnesses which could be treated clinically, but extended also, in particular, to dissocial personality disorders.

(c) The decision of 11 July 2013 concerning the compatibility with the Basic Law of section 1 § 1 of the Therapy Detention Act

By a decision dated 11 July 2013 the Federal Constitutional Court found that section 1 § 1 of the Therapy Detention Act was compatible with the Basic Law on the condition that it was interpreted in the following restrictive manner (file no. 2 BvR 2302/11 and 2 BvR 1279/12). Detention or its prolongation under that Act could only be ordered if there was a difference between such detention and detention for serving a term of imprisonment. Furthermore, there must be a high risk 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. In addition, the requirements of Article 5 § 1 (e) of the Convention had to be met. The principles developed in respect of preventive detention which had been ordered retrospectively (see above) thus equally applied to detention under the Therapy Detention Act.

The Federal Constitutional Court reiterated in that context that the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act, having regard to the standards flowing from Article 5 § 1 (e), did not require that the disorder was so serious as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code. It further referred to the Court ’ s case-law relating to Article 5 § 1 (e) (in particular, to Kronfeldner v. Germany , no. 21906/09 , 19 January 2012 ; and B v. Germany , no. 61272/09 , 19 April 2012) and found that the detention of a person for being “of unsound mind” could be justified provided that the detention was effected in an appropriate psychiatric institution, which, in turn, necessitated a corresponding intensity of the mental disorder.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his preventive detention beyond the former statutory ten-year maximum duration no longer had a legal basis. He submits in that context that he has no longer dr u nk alcohol since he had been taken in to detention thirty years ago and was not, and had never been, an alcoholic. Furthermore, he was not of unsound mind at the time of his offences and his alleged dissocial personality disorder could not be classified as a mental disorder.

In the applicant ’ s submission, the retrospective prolongation of his preventive detention, a penalty, beyond the former ten-year time-limit further breached the prohibition on retrospective punishment under Article 7 § 1 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in respect of his complaint under Article 7 of the Convention?

In particular, was a complaint to the Federal Constitutional Court an effective remedy within the meaning of this provision in respect of the applicant ’ s complaint under Article 7? And if so, did the applicant invoke before that court, at least in substance, the right under Article 7 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 res ult of the order, in the procee dings at issue, for the continuation of his preventive detention beyond the ten-year maximum duration applicable at the time of his offence and conviction? In particular, did the deprivation of liberty at issue fall within any of the sub ‑ p aragraphs (a) to (f) of Article 5 § 1?

3. Taking into consideration, in particular, the Court ’ s conclusions in its judgment in the case of M. v. Germany (no. 19359/04, ECHR 2009), was a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of the offences in the present case, as proscribed by Article 7 § 1 of the Convention?

4. What were the conditions of the execution of the preventive detention order against the applicant during the period of time covered by the proceedings at issue? What were the restrictions on the applicant ’ s right to liberty in the supervised residence he lived in? And did the applicant receive, at the relevant time, any medical or other treatment for the mental disorders he had been diagnosed with or in view of his consumption of alcohol at the time of many of his offences?