FIFTH SECTION

Applications nos . 52808/12 and 10841/13 Uwe Alfons BEER against Germany lodged on 9 August 2012 and 29 January 2013 respectively

STATEMENT OF FACTS

The applicant, Mr Uwe Alfons Beer, is a German national, who was born in 1979 and is currently detained in Straubing Prison. He is represented before the Court by Mr G. Haberl , a lawyer practising in Schwandorf .

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 retrospective order for his preventive detention

In 1999 the applicant was convicted on two counts of absconding from military service to performing work. In 2000 he was convicted of forgery and fraud and sentenced to two weeks ’ arrest as a juvenile offender.

On 27 January 2004 the Weiden Regional Court convicted the applicant of attempted murder and dangerous assault and sentenced him to six years ’ imprisonment. It found that the applicant, who suffered from a schizoid ‑ dissocial personality disorder characterised by emotional instability and a depressive mood at the time of his offences, had stabbed a seventeen ‑ year-old girl in the back on 30 April 2003. The applicant had been angry at and disappointed by the conduct of his victim, an acquaintance, the conversation with whom had not managed to lift his depressive mood, and had decided to kill her on the way home from a fair with a knife hidden in a park some days before.

The Regional Court further considered that it could not be excluded that the applicant, owing to his personality disorder, a stress situation because of the fact that he was unemployed and homeless and, possibly, the consumption of alcohol, had acted with diminished criminal responsibility (Article 21 of the Criminal Code, see Relevant domestic law and practice below).

The Regional Court did not order the applicant ’ s detention in a psychiatric hospital under Article 63 of the Criminal Code (see Relevant domestic law and practice below). It found that it had not been established with certainty that the applicant had committed his offences with diminished criminal responsibility as it had only not been possible to exclude this. Likewise, the court declined to order the applicant ’ s placement in a detoxification facility under Article 64 of the Criminal Code (see Relevant domestic law and practice below). It considered that the applicant abused alcohol, but it was questionable whether he was addicted to alcohol. Moreover, there was nothing to indicate that it was likely that the applicant would again become aggressive when he was drunk.

On 23 October 2008 the Weiden Regional Court ordered the applicant ’ s preventive detention retrospectively under Article 66b § 2 of the Criminal Code (see Relevant domestic law and practice below).

The Regional Court found that the applicant had been convicted of an offence against the life of another person, namely attempted murder, by the Weiden Regional Court on 27 January 2004 and had been sentenced to at least five years ’ imprisonment for that offence, as required by Article 66b § 2 of the Criminal Code. Moreover, after that conviction and prior to the end of the execution of the sentence imposed therefor, new facts had come to light which indicated that the applicant presented a significant danger to the public (see Article 66b §§ 2 and 1 of the Criminal Code).

The Regional Court noted that following his conviction, the applicant had written a number of letters to his mother and to female staff members of Bayreuth Prison which disclosed fetishist and dominant sexual fantasies and conduct. He had further confessed to have committed exhibitionist acts in the vicinity of the scene of his offences. As confirmed by two psychiatric experts, B. and O., consulted by the Regional Court, the applicant therefore suffered from a multiple sexual preference disorder. Against this background, the attempted murder he had committed had to be classified as a sexually motivated offence. Owing to his schizoid-dissocial and psychopathic personality disorder, his sexual preference disorder and his addiction to alcohol, the applicant further had a disposition to commit considerable offences, in particular violent offences with a sexual connotation. A comprehensive assessment of the applicant, his offence and, in addition, his development during the execution of his sentence revealed that there was a probability of more than 50 per cent that he would again commit serious violent or sexual offences resulting in considerable psychological or physical har m to the victims (Article 66b § 2 of the Criminal Code).

The applicant served his full prison sentence until 18 April 2009 in Bayreuth and Straubing Prisons. Since 19 April 2009 he has been in preventive detention in Straubing Prison.

2. The first set of proceedings at issue (application no. 52808/12)

(a) The proceedings before the Regensburg Regional Court

On 1 September 2011 the Regensburg Regional Court, in review proceedings under Article 67e of the Criminal Code (see Relevant domestic law and practice below), ordered that the applicant ’ s preventive detention, ordered by the Weiden Regional Court on 23 October 2008, was to continue (Article 67d § 2 of the Criminal Code, see Relevant domestic law and practice below).

Having heard the applicant and a psychiatric expert, N., in person, the Regional Court found that there was a high risk that the applicant would commit the most serious crimes of violence and sexual offences owing to specific circumstances relating to his person and his conduct. He further suffered from a mental disorder within the meaning of the Therapy Detention Act (see Relevant domestic law and practice below). Therefore, the strict requirements for a continuation of his preventive detention, ordered retrospectively under Article 66b § 2 of the Criminal Code in respect of offences committed prior to the entry into force of that provision, as set up by the Federal Constitutional Court in its leading judgment on preventive detention dated 4 May 2011 (see Relevant domestic law and practice below) were met. In that context, the Regional Court referred to the fact that the Federal Constitutional Court had ordered the unconstitutional provisions of the Criminal Code on preventive detention further to apply during a transitional period.

In coming to that conclusion, the Regional Court endorsed the findings which psychiatric expert N. had made in a report dated 16 April 2011 and supplemented by further written submissions of 17 May 2011 and 31 July 2011, as well as in his oral submissions. The court further had regard to the reports submitted by the director of Straubing Prison, who considered the further execution of the applicant ’ s preventive detention necessary, as did the Public Prosecutor ’ s Office.

The psychiatric expert, who had made his report on the basis of the case ‑ files as the applicant had refused to have himself examined, had diagnosed the applicant with a dissocial personality disorder with schizoid elements, alcohol addiction and a sexual preference disorder, which he had developed around the age of 18. He further had to be considered as a psychopath, which made it more likely that he would commit further violent or sexual offences if released. The Regional Court shared the expert ’ s view that these disorders were mental disorders for the purposes of the Therapy Detention Act.

The expert considered that there was a risk of more than 50 per cent that the applicant, if released, owing to his mental disorders, would commit further assaults with weapons and violent sexual offences against women, female adults and possibly children, in the years to come. The Regional Court found that, therefore, it was highly likely that the applicant would commit the most serious crimes of violence and sexual offences, such as attempted murder against victims chosen randomly, owing to specific circumstances relating to his person, notably his mental and sexual preference disorders, and his conduct. The Regional Court noted in this latter respect, in particular, that the applicant had discontinued a therapy for sexual offenders combined with a social therapy, which he had been offered in Straubing Prison, after a couple of months. He had not yet addressed his personality disorder and sexual deviation throughout his detention. Moreover, the applicant, an alcoholic, had attempted to produce alcohol in prison.

The Regional Court further declined to order the applicant ’ s transfer to a psychiatric hospital under Article 67a § 2 of the Criminal Code (see Relevant domestic law and practice below). It had regard to the expert ’ s view that it would not currently be possible to treat the applicant in such a hospital. It considered that the applicant ’ s reintegration into society would not, at present, be promoted better by a transfer to a psychiatric hospital in view of the applicant ’ s negative attitude towards such a transfer.

(b) The proceedings before the Nuremberg Court of Appeal

On 5 December 2011 the Nuremberg Court of Appeal dismissed the applicant ’ s appeal.

Endorsing the reasons given by the Regional Court, the Court of Appeal stressed that the Regional Court had correctly applied the stricter requirements for the continuation of a person ’ s retrospective preventive detention as laid down in the Federal Constitutional Court ’ s judgment of 4 May 2011.

(c) The proceedings before the Federal Constitutional Court

On 2 January 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that the decisions of the Regensburg Regional Court and of the Nuremberg Court of Appeal had breached his constitutional right to liberty. He submitted, in particular, that he was not a person “of unsound mind” for the purposes of Article 5 § 1 (e) of the Convention as he did not suffer from a pathological mental illness and did not receive any individualised medical treatment in prison. He further contested that there was a “high risk”, as defined by the Federal Constitutional Court ’ s case-law, that he would commit the most serious crimes of violence or sexual offences if released. Furthermore, in the applicant ’ s submission, the continuation of his preventive detention, ordered retrospectively, violated the principle of legitimate expectations in a State governed by the rule of law and the prohibitions on retrospective and double punishment.

On 1 June 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant ’ s con stitutional complaint (file no. 2 BvR 32/12).

3. The second set of proceedings at issue (application no. 10841/13)

(a) The proceedings before the Regensburg Regional Court

On 14 June 2012 the Regensburg Regional Court, granting the prosecution ’ s request, ordered the further execution of the applicant ’ s preventive detention under Article 67d § 2 of the Criminal Code.

The Regional Court, having heard the applicant in person, considered that there was still a high risk that the applicant would commit the most serious crimes of violence and sexual offences owing to specific circumstances relating to his person and his conduct. He further suffered from a mental disorder within the meaning of the Therapy Detention Act.

The Regional Court had regard, in this respect, to the report dated 16 April 2011 of psychiatric expert N., which it had consulted in the previous set of proceedings. It further found that the applicant ’ s dangerousness had not diminished since its previous decision. As confirmed by a report of the director of Straubing Prison, the applicant had not completed a necessary social therapy.

The Regional Court further considered that the case-law of the European Court of Human Rights did not warrant the applicant ’ s release from preventive detention. In its judgment of 19 January 2012 in application no. 21906/09 ( Kronfeldner v. Germany ), the European Court of Human Rights had found that the Federal Constitutional Court, in its judgment of 4 May 2011, had implemented the Strasbourg Court ’ s findings in the judgments on German preventive detention in the domestic legal order. Thereby, the European Court of Human Rights had accepted the Federal Constitutional Court ’ s order for the provisional further application of the provisions declared incompatible with the Basic Law until 31 May 2013.

(b) The proceedings before the Nuremberg Court of Appeal

On 3 September 2012 the Nuremberg Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant ’ s appeal.

The Court of Appeal noted, in particular, that in view of the high risk that the applicant would commit further most serious violent or sexual offences, the public interest in security outweighed the applicant ’ s interest in his personal liberty. The recent judgments of the European Court of Human Rights did not warrant a different conclusion. The European Court of Human Rights had not, to date, found any breaches of the Convention in relation to periods of preventive detention ordered after the Federal Constitutional Court ’ s leading judgment of 4 May 2011 and having regard to the requirements laid down in that judgment.

(c) The proceedings before the Federal Constitutional Court

On 19 September 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He again argued that the Regional Court ’ s and the Court of Appeal ’ s decision to further prolong his preventive detention had violated his constitutional right to liberty, the principle of legitimate expectations in a State governed by the rule of law and the prohibitions on retrospective and double punishment. He stressed that he could not be considered as a person “of unsound mind” as he did not suffer from a mental illness and had, in any event, not been detained in an institution appropriate for a mental health patient. Referring to the judgments of the European Court of Human Rights of 7 June 2012 in applications nos. 61827/09 and 65210/09 he further argued that preventive detention which had been ordered retrospectively was in breach of Article 7 of the Convention in all circumstances and could not, therefore, be prolonged by applying stricter criteria.

On 19 November 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 2183/12).

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

The applicant ’ s preventive detention was executed in a separate wing of Straubing Prison for persons in preventive detention. The applicant has been performing indoor work. At the time of the proceedings at issue, the applicant did not undergo a therapy.

5. Further developments

The city of Straubing initiated proceedings for the applicant ’ s detention in a psychiatric hospital under the Bavarian Mentally Ill Persons ’ Placement Act (see Relevant domestic law and practice below). A psychiatric expert consulted in these proceedings, K., having examined the applicant in person, found in his report dated 30 August 2010 that the requirements for the applicant ’ s detention under that Act were not met. Thereupon, the city of Straubing did not further pursue these proceedings.

Moreover, on 29 April 2011 the director of Straubing Prison applied to the Regensburg Regional Court (civil section) for the applicant ’ s detention under the Therapy Detention Act. Following the decision of the Nuremberg Court of Appeal of 5 December 2011 ordering the continuation of the applicant ’ s preventive detention, that application was withdrawn by a letter dated 3 January 2012.

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), in a detoxification facility (Article 64 of the Criminal Code) or 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 ... 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 ...

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.”

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. Judicial review and duration of preventive detention

Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court (that is, the chamber responsible for the execution of sentences) shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release.

Pursuant to Article 67e of the Criminal Code, the court may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied or should be declared 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 leading judgment of 4 May 2011 (see Relevant domestic law and practice below), ordered that in cases concerning the retrospective prolongation of a person ’ s preventive detention beyond the former ten-year maximum period or concerning the retrospective order for a person ’ s preventive detention under Article 66b § 2 of the Criminal Code, the time-limit laid down in Article 67e § 2 of the Criminal Code was reduced from two years to one year (see III.2.c of the operative provisions of the judgment).

3. 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 perpetrator against whom preventive detention was ordered to a psychiatric hospital or to a detoxification facility if the perpetrator ’ s reintegration into society can be better promoted thereby.

4. Provisions relating to criminal liability

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.

5. 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.

Secondly, pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (Bavarian (Mentally Ill Persons ’ ) Placement Act – Bayerisches Gesetz über die Unterbringung psychisch Kranker und deren Betreuung ) a court may order a person ’ s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill or suffers from a mental disorder resulting from amentia or addiction and thereby poses a severe threat to public security and order. Such an order may only be executed as long as no measure under Articles 63, 64 or 67a of the Criminal Code has been taken (section 1 § 2 of the said Act).

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.

6. 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 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 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 of the Convention that the continued execution of his preventive detention violated his right to liberty. He argues that his detention was not cover ed by any of the sub ‑ paragraphs (a) to (f) of Article 5 § 1. In particular, his retrospective preventive detention was not justified under s ub-paragraph (a) of Article 5 § 1 because it was not based on a “conviction” by a criminal court. Article 5 § 1 (c) did not apply because it did not authorise detention for general prevention, but only in order to secure the conduct of criminal proceedings. His detention could also not be based on sub-paragraph (e) of that provision as he was not a person “of unsound mind”. He was not placed in a psychiatric hospital under Article 63 of the Criminal Code and did not receive any individualised therapy in prison.

In the applicant ’ s submission, his preventive detention further breached Article 7 § 1 of the Convention. Having regard to the execution in practice, preventive detention was to be classified as an additional penalty, which was ordered retrospectively whereas the judgment convicting him of attempted murder had not contained a preventive detention order.

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. 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? 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 (no. 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?