FIFTH SECTION

Application no. 76871/12 Harald -Dieter ENGWER against Germany lodged on 26 November 2012

STATEMENT OF FACTS

The applicant, Mr Harald -Dieter Engwer , is a German national, who was born in 1967 and is currently detained in Berlin- Tegel Prison. He is represented before the Court by Mr S.K. Schneider, a lawyer practising in Lutherstadt Wittenberg.

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 execution of his sentences

On 31 July 1989 the Dresden Military Court convicted the applicant, who did his military service at that time, of attempted rape and coercion and sentenced him to one year and four months ’ imprisonment. The court found that the applicant, being drunk, had attempted to rape a young woman he had come across on a train.

On 18 June 1992 the Leipzig Regional Court convicted the applicant, in particular, of two counts of rape together with deprivation of liberty, one count of attempted rape and several counts of theft of vehicles and sentenced him to six years and eight months ’ imprisonment. The court found that the applicant had attempted to rape a sixteen-year-old girl he had come across on an agricultural road, had raped a twenty-five-year-old woman he had come across in town and a nineteen-year-old woman he had ambushed in a garden plot.

On 12 March 1998 the Gera District Court convicted the applicant of twenty-one counts of (partly attempted) aggravated theft, committed in garden plots, and sentenced him to two years and six months ’ imprisonment.

On 17 November 2000 the Potsdam Regional Court convicted the applicant of rape together with abduction for the purpose of blackmail, assault and aggravated theft. It sentenced him to ten years ’ 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 found that on 1 April 2000, less than two weeks after his release from prison, the applicant had abducted a woman he had come across in a stolen car in order to extort ransom and had raped her.

The Regional Court considered that the applicant who, according to medical expert (B.) it had consulted, suffered from a pathological borderline personality disorder with paranoiac and dissocial elements and, therefore, from a serious mental abnormality within the meaning of Article 21 of the Criminal Code (see Relevant domestic law and practice below), had acted with diminished criminal responsibility. He had to be placed in a psychiatric hospital as it was likely that he would reoffend and as he was dangerous to the public as a result of his personality disorder as long as he did not complete a long psychiatric and psychotherapeutic therapy (see Article 63 of the Criminal Code). The Regional Court did not consider the applicant ’ s preventive detention under Article 66 of the Criminal Code (see Relevant domestic law and practice below) in the reasoning of its judgment.

The applicant was initially detained in prison. On 20 February 2001 he was transferred to the Brandenburg Psychiatric Hospital. The hospital staff then came to the conclusion that the applicant ’ s personality disorder was not pathological and did not amount to a serious mental abnormality for the purposes of Article 21 of the Criminal Code. It therefore considered that the conditions for the applicant ’ s detention in a psychiatric hospital under Article 63 of the Criminal Code were not met.

On 5 February 2002 the Potsdam Regional Court declared the applicant ’ s detention in a psychiatric hospital under Article 63 of the Criminal Code terminated. Having consulted the medical experts from the psychiatric hospital, who had observed the applicant for almost one year, the court considered that the applicant had in fact never suffered from a borderline personality disorder. As the requirements laid down in Article 63 of the Criminal Code were therefore not met, the applicant ’ s detention in the psychiatric hospital had to be declared terminated.

Thereupon, the applicant was retransferred to Brandenburg Prison on 28 February 2002. He served the remainder of his prison sentence in that prison, where he was detained for fourteen months in the social-therapeutic department, and subsequently in Cottbus- Dissenchen Prison and Berlin ‑ Tegel Prison.

On 1 September 2005 the Brandenburg/Havel District Court convicted the applicant of attempted coercion of the director of the social-therapeutic department of Brandenburg Prison and sentenced him to three months ’ imprisonment.

On 28 June 2010 the Potsdam Regional Court convicted the applicant of assault of a fellow prisoner and sentenced him to six months ’ imprisonment.

On 1 July 2010 the applicant, having served his full prison sentence, remained detained in Berlin- Tegel Prison under the Potsdam Regional Court ’ s order of 9 June 2010 for his provisional preventive detention pending its decision on the prosecution ’ s request for his retrospective preventive detention.

On 30 July 2010 the Brandenburg Court of Appeal dismissed the applicant ’ s appeal against the detention order.

2. The proceedings at issue

(a) The proceedings before the Potsdam Regional Court

On 28 October 2010 the Potsdam Regional Court, granting the prosecution ’ s request dated 22 January 2010, ordered the applicant ’ s preventive detention retrospectively under Article 66b §§ 1 and 2 of the Criminal Code (see Relevant domestic law and practice below).

The Regional Court found that in its judgment of 17 November 2000, the Potsdam Regional Court had convicted the applicant of rape together with abduction for the purpose of blackmail, that is, felonies referred to in Article 66b § 1 of the Criminal Code. In addition, the applicant had previously been sentenced, on several occasions, to at least one year ’ s imprisonment and had served a prison sentence of at least two years (Article 66 of the Criminal Code). The requirements of Article 66b § 2 of the Criminal Code were equally met as, in the said judgment, the applicant had been sentenced for a felony against personal liberty and sexual self ‑ determination to at least five years ’ imprisonment.

The Regional Court further found that, as required by Article 66b §§ 1 and 2 of the Criminal Code, evidence had come to light which indicated that the applicant presented a significant danger to the general public. Having consulted two psychiatric experts (L. and K.), it considered that a comprehensive assessment of the applicant, his offences and, in addition, his development during the execution of his sentence (in particular his aggressive conduct) revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims. The court noted in this respect that, without suffering from a mental disorder for the purposes of Article 21 of the Criminal Code, the applicant had a disposition to commit serious sexual offences.

The Regional Court further endorsed the findings of expert L. that the applicant suffered from a dissocial personality disorder with paranoiac elements, which was not so serious as to amount to a serious mental abnormality for the purposes of Articles 20 and 21 of the Criminal Code. His sexual offences were the result of his lifestyle and attitude. As long as these remained unchanged it was likely that the applicant would commit further serious sexual offences if released. Expert K., who considered the applicant to be a psychopath, took the same view in this respect. He noted that the applicant had not completed a therapy addressing his sexual offences and was therefore still dangerous to the public.

Moreover, the Regional Court found that, contrary to the applicant ’ s submission, the proceedings did not have to be discontinued because the prosecution had failed to apply for the applicant ’ s retrospective preventive detention at least six months before the end of his prison term, as required by Article 275a § 1, third sentence, of the Code of Criminal Procedure (see Relevant domestic law and practice below). The latter provision did not lay down a mandatory deadline, but was only directory in that it aimed at limiting the period between the end of the prison term and the decision on the retrospective preventive detenti on of the person concerned. The prosecution ’ s request of 22 January 2010 had been sufficiently timely to comply with this requirement.

Finally, the Regional Court took the view that, contrary to the applicant ’ s submission, a retrospective order for the applicant ’ s preventive detention was not precluded by the judgment of 17 December 2009 of the European Court of Human Rights ( M. v. Germany , no. 19359/04, ECHR 2009 ) and the subsequent case-law of the domestic courts. In particular, domestic law as it stood could not be interpreted so as to exclude retrospective orders for preventive detention in the circumstances of the present case.

(b) The proceedings before the Federal Court of Justice

On 21 June 2011 the Federal Court of Justice dismissed the applicant ’ s appeal on points of law. The applicant had argued, in particular, that the retrospective order for his preventive detention had breached the prohibition on retrospective punishment under Article 7 § 1 of the Convention and his right to liberty under Article 5 § 1 of the Convention.

The Federal Court of Justice found that the requirements for the order for the applicant ’ s retrospective preventive detention under Article 66b §§ 1 and 2 of the Criminal Code, which remained applicable to offences committed prior to 31 December 2010, had been met.

The Federal Court of Justice further noted that according to the Federal Constitutional Court ’ s leading judgment of 4 May 2011 on preventive detention (see Relevant domestic law and practice below), former Article 66b § 2 of the Criminal Code could be further applied to offences committed prior to its entry into force only if it was highly likely that the applicant, owing to specific circumstances relating to his person or his conduct, would commit the most serious crimes of violence or sexual offences and if, additionally, he suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act. The latter condition was set up in order to comply with Article 5 § 1 (e) of the Convention. The same restrictions had to apply to retrospective preventive detention under former Article 66b § 1 of the Criminal Code.

The Federal Court of Justice considered that the impugned judgment of the Regional Court, which could not yet take these stricter requirements into account, clearly showed that these conditions were met in the applicant ’ s case. Having regard to the expert ’ s findings, the applicant was a serial rapist who had repeatedly reoffended shortly after his release from prison and had shown to be ready to use violence in prison. It was very likely that the applicant would commit further serious sexual offences if released. Moreover, the applicant suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act and Article 5 § 1 (e) of the Convention. Such a disorder did not have to be so serious as to diminish his criminal responsibility for the purposes of Articles 20 and 21 of the Criminal Code. The applicant had been diagnosed by two experts with a dissocial personality disorder with paranoiac elements which had led to his serious sexual offences and necessitated extensive therapeutic treatment.

The judgment was served on the applicant ’ s counsel on 19 July 2011.

(c) The proceedings before the Federal Constitutional Court

By submissions dated 29 July 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the judgment of the Potsdam Regional Court of 28 October 2010, as confirmed on appeal, and against the Potsdam Regional Court ’ s order of 9 June 2010 for his provisional detention, as confirmed on appeal. He argued that the impugned judgments and decisions had violated his constitutional right to liberty and the prohibition on retrospective punishment. He stressed that the Potsdam Regional Court, in its judgment of 17 November 2000, had not considered his preventive detention under Article 66 of the Criminal Code, despite the fact that the requirements for ordering such detention under that provision had been met. Moreover, Article 66b of the Criminal Code had entered into force only in 2004, after he had committed his offences in 2000. He had therefore had a legitimate expectation to be released after having served his full prison sentence.

On 15 July 2012 the Federal Constitutional Court dismissed the applicant ’ s request for legal aid as his complaint had no prospects of success and declined to consider his consti tutional complaint (file no. 2 BvR 1671/11).

3. The execution in practice of the applicant ’ s preventive detention

The retrospective preventive detention order against the applicant is executed in Berlin- Tegel Prison.

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, 17 December 2009). A summary of the provisions of the Basic Law governing the right to liberty (Article 2 § 2) and the ban on retrospective application of criminal laws (Article 103 § 2) can also be found in that judgment (ibid., §§ 57 and 61). The provisions referred to in the present case provide as follows:

1. The order of preventive detention

(a) Preventive detention orders by the sentencing court

Measures of correction and prevention (see Articles 61 et seq . of the Criminal Code) cover, in particular, placement in a psychiatric hospital (Article 63 of the Criminal Code) and in preventive detention (Article 66 of the Criminal Code).

Article 66 of the Criminal Code governs orders for a person ’ s preventive detention made by the sentencing court when finding the person guilty of an offence. That 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.

In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years ’ imprisonment and if the following further conditions are 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. 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. 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 (see Article 66 § 1 of the Criminal Code, in the version in force at the relevant time).

(b) Retrospective preventive detention orders

The Retrospective Preventive Detention Act ( Gesetz zur Einführung der nachträglichen Sicherungsverwahrung ) of 23 July 2004, which entered into force on 29 July 2004, inserted Article 66b §§ 1 and 2 into the Criminal Code; the provision was amended by an Ac t of 13 April 2007. Article 66b §§ 1 and 2 was aimed at preventing the release of persons whose particular dangerousness came to light only during the execution of a prison sentence imposed on them (see German Federal Parliament documents ( BTDrucks ), no. 15/2887, p. 12).

The said Article, in so far as relevant and in the version applicable at the relevant time, provided:

Article 66b Retrospective order for placement in preventive detention

“1. If prior to the end of enforcement of a term of imprisonment imposed on conviction for a felony against life or limb, personal liberty, sexual self-determination or ..., evidence comes to light which indicates that the convicted person presents a significant danger to the general public, the court may order preventive detention retrospectively if a comprehensive assessment of the convicted person, his offences and, in addition, his development during the execution of his sentence revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims and if, at the time of the decision on the retrospective order for preventive detention, the additional requirements of Article 66 were met. ...

2. If evidence of facts of the kind listed in paragraph 1, first sentence, comes to light after a prison sentence of a term of not less than five years has been imposed for one or more felonies against life or limb, personal liberty, sexual self-determination or ..., the court may order preventive detention retrospectively if a comprehensive assessment of the convicted person, his offence or offences and, in addition, his development during the execution of his sentence revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims.”

Under Article 275a § 1, third sentence, of the Code of Criminal Procedure, the prosecution shall request the retrospective order for preventive detention under Article 66b §§ 1 or 2 of the Criminal Code at least six months before the date on which the execution of the term of imprisonment against the person concerned ends.

By the Reform of Preventive Detention Act ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of 22 December 2010, which entered into force on 1 January 2011, Article 66b §§ 1 and 2 of the Criminal Code were abolished for offences committed after the entry into force of that Act.

2. Provisions relating to criminal responsibility

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 grounds indicated in Article 20 of the Criminal Code.

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.

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 ( no. 19359/04, ECHR 2009 ), 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

On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants ’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant ’ s preventive detention under Article 66b § 2 of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.

The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code 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 the 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 or ordered retrospectively 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 Therapy Detention Act (see Relevant domestic law and practice above). 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.

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).

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that the retrospective order for his preventive detention violated his right to liberty. Referring to the Court ’ s judgment in the case of Haidn v. Germany (no. 6587/04 , 13 January 2011), he argues, in particular, that his detention was not justified under sub-paragraph (a) of Article 5 § 1 as there was no sufficient causal connection between his criminal conviction by the Potsdam Regional Court in 2000 and the retrospective order for his preventive detention made by that court in 2010.

Relying on Article 7 § 1 of the Convention, the applicant further submits that his retrospective preventive detention breaches the prohibition on retrospective punishment. At the time of his offence in April 2000, a retrospective order for his preventive detention under Article 66b of the Criminal Code was not possible as that provision entered into force only in July 2004.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention as a result of the proceedings at issue?

In particular, having regard to the Court ’ s case-law in the case of M. v. G ermany ( 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? And were the applicant ’ s conditions of detention adapted during the relevant period so as to take account of the fact that he was considered as suffering from a mental disorder?

2. Taking into consideration, in particular, the Court ’ s conclusions in its judgments in the cases of M. v. Germany (cited above), K v. Germany (no. 61827/09, 7 June 2012) and G v. Germany (n o. 65210/09, 7 June 2012), w as a heavier penalty imposed on the applicant than the one which was applicable at the time of the commission of the offence in the present case, as proscribed by Article 7 § 1 of the Convention?

And did the way in which the preventive detention order against the applicant was executed change during the period of detention here at issue as a result of the Federal Constitutional Court ’ s leading judgment on preventive detention of 4 May 2011?