Communicated on 6 January 2014

FIFTH SECTION

Application no. 55594/13 W.P. against Germany lodged on 26 July 2013

STATEMENT OF FACTS

The applicant, W.P. , is a German national, who was born in 1944 and is currently detained in Hamburg Prison. He is represented before the Court by Ms M. Koch, a lawyer practising in Hamburg.

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 6 October 1970 and 28 May 1991 the applicant was convicted by four different courts of five counts of rape of young women and was sentenced to terms of imprisonment ranging from three to eight years.

On 28 March 1994 the Lübeck Regional Court convicted the applicant of rape and sexual assault. It sentenced him to eight 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 in August 1986 the applicant, having acted with full criminal responsibility, had raped an eighteen-year-old woman whom he had lured into a forest. Having regard to his repeated sexual offences, which he had committed a couple of months only after having been released from prison respectively, and having consulted a medical expert, the Regional Court found that the applicant had a propensity to commit serious sexual offences and was dangerous to the public.

On 10 January 2002 the applicant, having fully served his prison sentence, was placed for the first time in preventive detention, executed initially in Lübeck Prison.

The continuation of the applicant ’ s preventive detention was ordered at regular intervals, in particular by the Lübeck Regional Court on 20 September 2011. The Schleswig-Holstein Court of Appeal confirmed the Regional Court ’ s decision on 18 October 2011.

The applicant had served ten years in preventive detention by 9 January 2012.

2. The proceedings at issue

(a) The decision of the Lübeck Regional Court

On 2 October 2012 the Lübeck Regional Court, having heard the applicant in person as well as his lawyer, by whom he was represented throughout the proceedings, ordered the applicant ’ s preventive detention to continue.

The Regional Court considered that the requirements set up by the Federal Constitutional Court in its judgment of 4 May 2011 (see Relevant domestic law and practice below) in order for a retrospectively prolonged preventive detention to continue were met. It found that the applicant suffered from a mental disorder for the purposes of section 1 § 1 no. 1 of the Therapy Detention Act ( see Relevant domestic law and practice below). He had a personality and conduct disorder as described by the relevant tool for the classification of diseases, the ICD-10 [1] . The Regional Court endorsed the findings which psychiatric expert B. had made in his report dated 4 June 2010 on the possibilities of relaxations in the conditions of the applicant ’ s detention ( Vollzugslockerungen ), namely, that the applicant suffered from a profound and serious personality disorder with narcissistic elements and a lack of self-esteem. His disorder was characterised by denying and idealising conduct, denial of his own aggressions and minimisation of his criminal acts.

Furthermore, in the Regional Court ’ s view, 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. It had repeatedly been confirmed, in particular, by expert B. and by the Hamburg-Eppendorf University hospital, that the applicant needed a therapy for sexual offenders in a social therapeutic institution. However, the applicant had confirmed in the hearing that he refused his transfer to the prison ’ s social therapeutic department. Furthermore, the applicant had raped already six women and had repeatedly reoffended shortly after his release.

(b) The decision of the Schleswig-Holstein Court of Appeal

On 24 October 2012 the applicant lodged an appeal against the Regional Court ’ s decision with the Schleswig-Holstein Court of Appeal. He argued that his continued preventive detention beyond the former ten-year time ‑ limit breached the Basic Law, as interpreted by the Federal Constitutional Court, and the Convention. He complained, in particular, that the Regional Court had failed to obtain a new report by a different expert and had relied on the report of expert B. dating back two and a half years on relaxations in the conditions of the applicant ’ s detention, which had not addressed the issues relevant for his continued detention.

On 21 November 2012 the Schleswig-Holstein Court of Appeal dismissed the applicant ’ s appeal. As regards the finding that the applicant suffered from a mental disorder, the Court of Appeal stressed that the decision to prolong the applicant ’ s preventive detention had not only been based on the report submitted by expert B. in 2010. The expert had been heard in person by the Regional Court in different proceedings (concerning the applicant ’ s transfer to a psychiatric hospital) on 6 June 2012 and had updated and confirmed his previous findings. His assessment had further been confirmed by the statement of the Hamburg-Eppendorf University hospital dated 27 March 2012. The latter, having regard to the case-file, had confirmed expert B. ’ s conclusion that the applicant suffered from a profound personality disorder as defined by the ICD-10, namely a narcissistic personality disorder with emotionally instable and sadistic elements.

The Court of Appeal, having regard to the applicant ’ s previous offences and the fact that therapies to date had not yielded success, further confirmed that there was still a high risk that the applicant would commit the most serious sexual offences if released. As had been confirmed by the applicant in the hearing before the Regional Court, his personal and therapeutic situation had not changed since the court ’ s last decision ordering the prolongation of the applicant ’ s preventive detention.

(c) The decision of the Federal Constitutional Court

On 17 December 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the prolongation of his preventive detention beyond the former statutory ten-year time-limit had violated his right to liberty and the protection of legitimate expectations in a state governed by the rule of law.

The applicant claimed that the restrictive criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011 for a continuation of his retrospectively prolonged preventive detention had not been met. In particular, the order for the continuation of his preventive detention had been based on an old expert report on relaxations in the conditions of his detention, which had not addressed the criteria set up by the Federal Constitutional Court. In these circumstances, the courts had not disposed of a sufficient basis for concluding that he had a mental disorder for the purposes of the Therapy Detention Act. In any event, he did not suffer from a mental illness as required by Article 5 § 1 (e) of the Convention.

On 20 March 2013 the Federal Constitutional Court, without giving reasons, declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 2886/12).

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

From 10 January 2002 until May 2013 the preventive detention order against the applicant was executed in Lübeck Prison, where the applicant was detained together with persons ser ving their prison sentence. The applicant has been detained in Hamburg Prison since then.

At the time of the proceedings at issue, the applicant, having refused repeated offers for treatment, in particular his transfer to the social ‑ therapeutic institution of Lübeck Prison, apparently did not undergo any therapy for sexual offenders. His occasional conversations with the prison psychologists had been discontinued in May 2012.

4. Further developments

On 14 June 2012 the Lübeck 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). Having heard psychiatric expert B., the Regional Court found that the applicant ’ s reintegration into society could not better be promoted in a psychiatric hospital. It was necessary for the applicant to participate in a therapy for sexual offenders in a social-therapeutic department in prison or possibly offered by an external social therapist. Transferring the applicant, who was not willing to undergo therapy, to a psychiatric hospital against his will would not yield any success. Likewise, the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment, which necessitated detaining persons in preventive detention separate from person serving a term of imprisonment, did not warrant the applicant ’ s transfer to a psychiatric hospital. It would be possible to detain the applicant separated from prisoners serving their sentence in Lübeck Prison in the near future, following the termination of construction works.

In the course of fresh proceedings before the Hamburg Regional Court for review of the continuation of the applicant ’ s preventive detention, psychiatric expert L. submitted a new report dated 28 August 2013 on the applicant ’ s mental condition and dangerousness. Having examined the applicant in person, he considered that the applicant was an accentuated personality, possibly with sadistic personality traits , and lacked self-esteem. He found, however, that the applicant could not be diagnosed with a mental disorder as defined in the ICD-10; in particular, he did not suffer from sexual sadism. There was an average risk that the applicant would again commit serious sexual offences if released.

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 sentenc e (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, 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 tim e-limit is two years (paragraph 2 of Article 67e).

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, owing to his criminal tendencies, 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 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 Co de (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 about his continuing preventive detention beyond the former ten-year time-limit. He claims, in particular, that his preventive detention was not justified under sub-paragraph (e) of Article 5 § 1. Even if he had a personality disorder, he did not suffer from a mental disorder for the purposes of the Therapy Detention Act and was even less a person “of unsound mind” suffering from a mental illness for the purposes of Article 5 § 1 (e). In any event, he was detained in Lübeck Prison, which was not a suitable institution for mental health patients.

Relying on the Court ’ s judgment in the case of M. v. Germany ( no. 19359/04, ECHR 2009), the applicant further argues that the retrospective prolongation of his preventive detention beyond the former ten-year maximum duration breached Article 7 § 1 of the Convention.

Moreover, in the applicant ’ s submission, the proceedings for review of his preventive detention were unfair and in breach of Article 6 § 1 of the Convention because the continuation of his preventive detention was ordered on the basis of insufficient expert advice. The expert report relied on by the domestic courts dated back to 4 June 2010, concerned only relaxations in the conditions of his detention and did not address the new stricter criteria set up by the Federal Constitutional Court in its leading judgment of 4 May 2011 for a continuation of retrospectively prolonged preventive detention.

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?

(a) 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?

(b) And did the domestic courts ’ order for the continuation of the applicant ’ s preventive detention on the basis of a psychiatric expert report dating back to 4 June 2010, which concerned relaxations in the conditions of the applicant ’ s detention, fail to comply with the requirements 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.