Communicated on 6 March 2014

FIFTH SECTION

Application no. 79457/13 Reiner BECHT against Germany lodged on 10 December 2013

STATEMENT OF FACTS

The applicant, Mr Reiner Becht , is a German national, who was born in 1956 and is currently detained in Weiterstadt Prison . He is represented before the Court by Mr B. Schroer , a lawyer practising in Marburg .

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

Between 1972 and 1980 the applicant was convicted of a number of property and traffic offences and sentenced to several terms of imprisonment of up to one year and three months.

On 22 January 1982 the Darmstadt Regional Court convicted the applicant of two counts of rape combined with sexual coercion and of attempted rape of three women randomly chosen on the street. It sentenced the applicant, who had acted with full criminal responsibility, to seven years and six months ’ imprisonment.

On 6 October 1987 the Landshut Regional Court convicted the applicant of two counts of rape combined with one count of sexual assault, of attempted rape and of aggravated robbery, joint robbery and attempted aggravated robbery. It sentenced the applicant, who had acted with full criminal responsibility, to thirteen years ’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see Relevant domestic law and practice below).

The Regional Court found that between June and August 1986 the applicant, having absconded during a leave from detention he had been granted, had raped a twenty-two-year-old woman and a sixteen-year-old girl on a farm track, had attempted to rape another randomly chosen woman, had stolen two cars by use of threats or force, had attempted to steal another car by force and had stabbed a woman in the chest twice with a screwdriver on that occasion. Medical expert W. had diagnosed the applicant with a mental abnormality with schizoid and psychopathic elements which was not pathological and thus did not affect the applicant ’ s criminal responsibility.

On 15 March 1988 the Federal Court of Justice quashed the Regional Court ’ s judgment of 6 October 1987 in so far as it had ordered the applicant ’ s preventive detention as the requirements of paragraph 1 of Article 66 of the Criminal Code had not been met.

Thereupon, on 25 July 1988 the Landshut Regional Court, having consulted medical expert W. who had found that the applicant, a psychastenic and schizoid personality, had a propensity to commit serious sexual and property offences, ordered the applicant ’ s preventive detention under Article 66 §§ 2 and 1 of the Criminal Code (see Relevant domestic law and practice below).

On 10 April 2002 the applicant, having fully served his terms of imprisonment, was placed for the first time in preventive detention.

2. The first set of proceedings at issue

(a) The decision of the Marburg Regional Court

On 13 December 2011 the Marburg Regional Court ordered the applicant ’ s preventive detention to continue also after 9 April 2012, when the applicant would have served ten years in that form of detention.

The Regional Court considered that the requirements for a prolongation of that detention, laid down in Article 67d § 3 of the Criminal Code and modified by the Federal Constitutional Court ’ s judgment of 4 May 2011 (see Relevant domestic law and practice below), were met.

Having heard the applicant, his counsel, who has represented him throughout the two sets of proceedings at issue, the prosecution, psychiatric expert J. and a representative of Schwalmstadt Prison, the Regional Court considered that there was still a risk that the applicant , owing to specific circumstances relating to his person and his conduct , would commit the most serious crimes of violence and sexual offences if released. The Regional Court referred to the applicant ’ s previous convictions of numerous counts of rape of randomly chosen victims who had suffered most serious mental damage and of robbery by potentially mortal stabs in the chest in this respect. It further noted that the applicant had not completed any of the therapies offered to him to reflect on his offences .

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). It noted that expert J., in his report dated 15 September 2011, having regard to the relevant tool for the classification of diseases , the ICD-10 [1] , had diagnosed the applicant with a dissocial and schizoid personality disorder, which was to be classified as a mental disorder under the said Act. It further had regard to the report dated 27 December 2004 , submitted in previous proceedings by psychiatric expert B. , who had already diagnosed the applicant with a dissocial personality disorder with schizoid and psychopathic elements.

(b) The decision of the Frankfurt am Main Court of Appeal

On 22 December 2011 the applicant lodged an appeal against the Regional Court ’ s decision. He claimed that the order for the continuation of his preventive detention violated Article 5 and Article 7 of the Convention and failed to comply with the conditions set up by the Federal Constitutional Court in its judgment of 4 May 2011.

On 13 March 2012 the Frankfurt am Main Court of Appeal dismissed the applicant ’ s appeal. Endorsing the reasons given by the Regional Court, the Court of Appeal found that there was still a high risk that the applicant , owing to his dissocial and schizoid personality disorder , would commit the most serious crimes of violence and sexual offences if released. This was proven, in particular, by the fact that the applicant had committed his last serious sexual offences immediately after having absconded during a leave from detention. He had then, in particular, raped a sixteen-year-old woman whom he had not previously known by threatening her with a knife.

(c) The decision of the Federal Constitutional Court

On 16 April 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Regional Court and the Court of Appeal. He argued, in particular, that the order for the continuation of his preventive detention beyond the former statutory ten ‑ year time-limit had breached his constitutional right to liberty, the constitutional protection of legitimate expectations in a State governed by the rule of law and the principle of proportionality. The conditions set up by the Federal Constitutional Court in its leading judgment of 4 May 2011 for his preventive detention to continue had not been met. Referring to the European Court of Human Right ’ s judgment in the case of M. v. Germany ( no. 19359/04, ECHR 2009 ) , he further argued that his detention failed to comply with Article 5 and Article 7 of the Convention.

On 13 June 2013 the Federal Constitutional Court refused to grant the applicant legal aid and declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 963/13).

3 . The second set of proceedings at issue

(a) The decision of the Marburg Regional Court

On 23 January 2013 the Marburg Regional Court, having heard the applicant in person, his counsel, the prosecution and a representative of Schwalmstadt Prison and having regard to the report of psychiatric expert J. dated 15 September 2011, again ordered the continuation of the applicant ’ s preventive detention.

The Regional Court found that the condit ions laid down in Article 67d § 3 of the Criminal Code, as modified by the Federal Constitutional Court in its judgment of 4 May 2011, for terminating the applicant ’ s preventive detention were still not met. There was still 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 if released. Moreover, he suffered from a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act.

The Regional Court endorsed the reasons given by the Frankfurt am Main Court of Appeal in its decision of 13 March 2012 to support its finding. It further took note of the fact that the applicant had proved reliable during several leaves from prison under escort and had taken up work in prison. However, he still had not completed a necessary therapy aimed at preventing him from reoffending.

(b) The decision of the Frankfurt am Main Court of Appeal

On 28 January 2013 the applicant lodged an appeal against the Regional Court ’ s decision in which he reiterated the views expressed in his appeal dated 22 December 2011.

On 14 March 2013 the Frankfurt am Main Court of Appeal dismissed the applicant ’ s appeal. It referred to the conclusions in its decision dated 13 March 2012 and found that the factual findings and legal assessment made in that decision were still valid. In particular, the applicant kept refusing a necessary therapy.

(c) The decision of the Federal Constitutional Court

On 24 April 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Regional Court and the Court of Appeal. He again claimed that the order for the continuation of his preventive detention beyond the former statutory ten ‑ year time-limit had breached his constitutional right to liberty, the constitutional protection of legitimate expectations in a State governed by the rule of law, the principle of proportionality and Articles 5 and 7 of the Convention.

On 13 June 2013 the Federal Constitutional Court refused to grant the applicant legal aid and declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 1055/13).

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

The applicant was initially in preventive detention in Schwalmstadt Prison. Since April 2013 he has been detained in Weiterstadt Prison. He recently started working again in prison and was occasionally granted leave from prison under escort.

During the time the applicant served his terms of imprisonment, he participated in a psychological individualised therapy from June 1995 until February 1997 in the social therapeutic department of Kassel Prison. Having discontinued that therapy, the applicant was retransferred to Schwalmstadt Prison and has refused any therapy addressing his offences since then. He only participates in a weekly discussion group for persons in preventive detention.

5 . O ther developments

On 26 April 2012 the Marburg Regional Court dismissed the prosecution ’ s request to transfer the applicant to a psychiatric hospital for the further execution of his preventive detention under Article 67a § 2 of the Criminal Code (see Relevant domestic law and practice below).

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. 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 add ition 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, in the version in force at the relevant time, 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, as laid down in Article 66 § 1 (3) of the Criminal Code, 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. Unlike Article 66 § 1, Article 66 § 2 does not require that the perpetrator has been previously convicted or detained.

2. Judicial review and duration of preventive detention

Pursuant to Article 67e of the Criminal Code, in the version in force at the relevant time, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied or shall be terminated. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time-limit is two years (paragraph 2 of Article 67e). The Federal Constitutional Court, in its judgment of 4 May 2011 (file nos. 2 BvR 2365/09 and others, see below) ordered that the time ‑ limit of two years under Article 67e § 2 of the Criminal Code for review of the continuation of preventive detention be reduced to one year, in particular, for persons whose detention was retrospectively prolonged beyond the former ten-year maximum duration (see below).

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

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. 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 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, in particular, under Article 66b § 2 of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 B vR 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 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, or ordered retrospectively, in particular, under Article 66b § 2 of the Criminal Code, 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.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that his preventive detention beyond the former statutory ten-year maximum duration was not justified under any of the sub-paragraphs (a) to (f) of that provision and that he was thus unlawfully deprived of his liberty. In particular, his detention was not justified under Article 5 § 1 (e). He was not “of unsound mind”, that is, mentally ill as required by that provision and was never placed in a psychiatric hospital. The personality disorder he allegedly suffered from, which 80 to 90 per cent of the prison population could be diagnosed with, was, in any event, not serious enough for his being classified as of “unsound mind” for the purposes of Article 5 § 1 (e). Furthermore, he was detained in Weiterstadt Prison, which was not a suitable institution for mental health patients as required by the latter provision (he referred, inter alia , to M. v. Germany , cited above, to support his view).

Relying, in particular, on the Court ’ s judgment in the case of M. v. Germany ( cited above ), the applicant further submits that the retrospective prolongation of his preventive detention, a penalty, beyond the former ten-year time-limit breached Article 7 § 1 of the Convention .

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 order for the continuation of his preventive detention beyond the ten-year maximum duration applicable at the time of his offence s and conviction?

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; and Kronfeldner v. Germany , no. 21906/09 , 19 January 2012), did that deprivation of liberty, executed in prison, fall within any of the sub-paragraphs (a) to (f) of Article 5 § 1?

2. Taking into consideration, in particular, the Court ’ s conclusions in its judgment in the case of M. v. Germany (cited above), 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?

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