Communicated on 6 January 2014

FIFTH SECTION

Applications nos . 58600/12 and 71215/13 Herbert Peter EBERHARD against Germany lodged on 29 August 2012 and 18 October 2013 respectively

STATEMENT OF FACTS

The applicant, Mr Herbert Peter Eberhard , is a German national, who was born in 1963 and is currently detained in Diez Prison . He is represented before the Court by Mr O. Möller , a lawyer practising in Völklingen .

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

The applicant was convicted, in particular, in 1980 of serious joint robbery and extortion and also of joint dangerous assault for having mistreated another adolescent in a torture-like manner and was sentenced to three years ’ imprisonment under the criminal law relating to young offenders.

In 1983 the applicant was convicted, inter alia , of extortion and murder of a taxi driver, committed two days after his release from prison, and was sentenced to ten years ’ imprisonment, the maximum sentence under the criminal law relating to young offenders.

On 19 May 1994 the Trier Regional Court convicted the applicant of sexual assault combined with dangerous assault. It sentenced him to seven years ’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see Relevant domestic law and practice below) in view of the applicant ’ s propensity to commit violent offences. The Regional Court found that on 21 August 1993, less than half a year after his release from prison, the applicant had sexually assaulted the girl-friend of a former fellow prison inmate who had allowed him to sleep in their flat and had hit, strangulated and threatened her with a knife during his offence.

The Regional Court considered that the applicant had acted with full criminal responsibility. It endorsed the findings of psychiatric expert E., who had diagnosed the applicant with a dissocial personality disorder and intellectual deficits. These had to be classified as an “ other mental abnormality ”, but were not an “other serious mental abnormality” for the purposes of Article 20 of the Criminal Code (see Relevant domestic law and practice below) so as to diminish the applicant ’ s criminal responsibility. Likewise, the applicant ’ s alcohol intoxication had not been such as to diminish his criminal responsibility at the time of his offence.

On 22 September 2000 the applicant, having fully served his prison sentence, was placed for the first time in preventive detention, executed initially in Werl Prison. The prolongation of the applicant ’ s preventive detention was ordered at regular intervals, in particular, by the Koblenz Regional Court on 19 April 2007.

On 21 September 2010 the applicant had served ten years in preventive detention.

On 18 October 2010 the Trier Regional Court ordered the continuation of the applicant ’ s preventive detention beyond the former statutory ten-year maximum duration.

On 2 December 2010 the Koblenz Court of Appeal quashed that decision and remitted the case to the Regional Court. It found that the Regional Court was obliged to hear psychiatric expert R. in person and had to request him to supplement his report in the light of the Federal Court of Justice ’ s new case-law.

2. The first set of proceedings at issue (application no. 58600/12)

(a) The decision of the Trier Regional Court

On 3 November 2011 the Trier Regional Court, having heard the applicant in person as well as his counsel, who represented him throughout the proceedings, and psychiatric expert R., again ordered the continuation of the applicant ’ s preventive detention imposed by the Trier Regional Court on 19 May 1994 beyond ten years (Article 67d § 3 of the Criminal Code; see Relevant domestic law and practice below).

The Regional Court found that under the Federal Constitutional Court ’ s recent case-law (it referred, in particular, to that court ’ s judgment of 4 May 2011, file nos. 2 BvR 2365/09 and others, see Relevant domestic law and practice below), the retrospective prolongation of preventive detention beyond the former ten-year time-limit was only permitted if, in particular, the requirements of Article 5 § 1 (e) of the Convention were met. Accordingly, the detainee had to suffer from a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act (see Relevant domestic law and practice below), which included dissocial personality disorders.

Having regard to the findings expert R. made in his report dated 9 September 2010, which the latter supplemented on 9 May 2011, 31 May 2011 and in the hearing, the Regional Court found that the applicant suffered from a dissocial personality disorder and thus from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act. Expert R. had confirmed previous findings made by experts in 1993 and 2000 that the applicant was a dissocial personality as defined in the relevant tool for the classification of diseases , the ICD-10 [1] . He explained that offenders very frequently suffered from dissocial personality disorders. The expert further considered the applicant as a psychopath. The applicant ’ s mental disorder could not be treated by psychiatric means. The Regional Court further noted that, apart from weekly therapy sessions for half a year in Werl Prison, the applicant, who still denied his last offence, had not undergone any therapy.

Moreover, the Regional Court considered that, as required by the Federal Constitutional Court ’ s case-law, 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 or sexual offences if released. It notably had regard to the applicant ’ s previous convictions, to the fact that he reoffended repeatedly shortly after his release from detention and to the findings of expert R. on the applicant ’ s dangerousness in this respect.

(b) The decision of the Koblenz Court of Appeal

On 22 December 2011 the Koblenz Court of Appeal dismissed the applicant ’ s appeal. Endorsing the reasons given by the Regional Court, it found, in particular, that the applicant ’ s dissocial personality, a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act which had not changed during his detention, was the cause for his offences.

The Court of Appeal further decided that the applicant should not be transferred to a psychiatric hospital for the continuing execution of his preventive detention under Article 67a § 2 of the Criminal Code (see Relevant domestic law and practice below) as the applicant ’ s dissocial personality disorder did not diminish his criminal responsibility.

The Court of Appeal ’ s decision was served on the applicant ’ s counsel on 5 January 2012.

(c) The decision of the Federal Constitutional Court

On 30 January 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued, in particular, that his continued preventive detention beyond the former ten-year time-limit had breached his constitutional right to liberty, the protection of legitimate expectations in a State governed by the rule of law and the prohibition on retrospective penalties. He contested, in particular, that he suffered from a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act and submitted that he was even less a person “of unsound mind” for the purposes of Article 5 § 1 (e).

On 23 February 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 255/12). The decision was served on the applicant ’ s counsel on 5 March 2012.

3 . The second set of proceedings at issue (application no. 71215/13)

(a) The decision of the Koblenz Regional Court

On 15 November 2012 the Koblenz Regional Court again ordered the continuation of the applicant ’ s preventive detention.

Having heard the applicant in person and his counsel and having regard to the reports submitted by expert R. in the previous set of proceedings, the Regional Court considered that 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 or sexual offences if released. That risk was caused by a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act. The Koblenz Regional Court noted in that context that since the last decision of the Trier Regional Court, confirmed on appeal, the applicant had not undergone any therapy. The request made to the prison authorities by the applicant, who still denied his last offence, to be treated by an external expert had not yet been decided upon.

(b) The decision of the Koblenz Court of Appeal

On 18 January 2013 the Koblenz Court of Appeal dismissed the applicant ’ s appeal as ill-founded. It considered that there had not been any progress in the applicant ’ s treatment or other changes to the applicant ’ s dangerousness since its decision of 22 December 2011. The Court of Appeal ’ s decision was served on the applicant ’ s counsel on 25 January 2013.

(c) The decision of the Federal Constitutional Court

On 23 February 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He again submitted, in particular, that his continued preventive detention beyond the former ten-year time-limit had breached his constitutional right to liberty, the protection of legitimate expectations in a State governed by the rule of law and the prohibition on retrospective penalties.

On 15 May 2013 the Federal Constitutional Court refused to grant the applicant legal aid and declined to consider the applicant ’ s constitutional complaint without giving reasons (file no. 2 BvR 469/13). The decision was served on the applicant ’ s counsel on 27 May 2013.

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

The p reventive detention order against the applicant was initially executed in Werl Prison ( from 22 September 2000 onwards ) . On 19 January 2004 the applicant was transferred to Diez Prison , on 23 July 2008 to Wittlich Prison and on 25 May 2012 again to Diez Prison , where he has since then been detained in the department for persons in preventive detention.

The applicant, who has been denying his last offence, did not undergo any therapy in Wittlich or Diez Prison.

5 . Further developments

On 28 January 2011 the director of Wittlich Prison lodged a request with the Trier Regional Court (civil section) for the applicant ’ s placement in a suitable institution under section 1 § 1 of the Therapy Detention Act. On 19 April 2011 and on 2 January 2012 he further requested the applicant ’ s provisional placement in a psychiatric clinic under that Act.

On 13 November 2012 the director of Diez Prison lodged a request with the Koblenz Regional Court (civil section) for the applicant ’ s placement in a suitable institution under section 1 § 1 of the Therapy Detention Act.

The proceedings are pending before the Regional Courts.

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 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, under Article 66 § 1 of the Criminal Code, in its version in force at the relevant time, the sentencing court had to order preventive detention in addition to the penalty if someone was sentenced for an intentional offence to at least two years ’ imprisonment and if the following further conditions were satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year ’ s imprisonment in each case, for intentional offences committed prior to the new offence (Article 66 § 1 (1)). Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years (Article 66 § 1 (2)). Thirdly, a comprehensive assessment of the perpetrator 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 perpetrator presents a danger to the general public (Article 66 § 1 (3)).

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 (p aragraph 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, 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 .

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, 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.

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.

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 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.

COMPLAINTS

The a pplicant complain s under Article 5 § 1 of the Convention about the order for the continuation of his preventive detention beyond the former statutory ten-year maximum duration. Relying on the Court ’ s judgment in the case of M. v. Germany ( no. 19359/04, ECHR 2009 ), he argues that his detention was not justified under any of the sub-paragraphs (a) to (f) of Article 5 § 1. In particular, his detention was not justified under Article 5 § 1 (e). The dissocial personality disorder he had been diagnosed with did not diminish his criminal responsibility and was not a mental disorder for the purposes of section 1 of the Therapy Detention Act and even less a mental illness for the purposes of Article 5 § 1 (e). Moreover, he was detained in prison, which was not a suitable institution for mental health patients as required by the latter provision.

In the applicant ’ s submission, the retrospective prolongation of his preventive detention, a penalty, beyond the former ten-year time-limit further breached Article 7 § 1 of the Convention for the reasons set out in the Court ’ s judgment in the case of M. v. Germany ( cited above ).

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 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 offence in the present cas e, as proscribed by Article 7 § 1 of the Convention?

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