FIFTH SECTION

Application no. 70904/10 Andreas Josef KOZIOL against Germany lodged on 30 November 2010

STATEMENT OF FACTS

The applicant, Mr Andreas Josef Koziol , is a German national, who was born in 1963. When lodging his application, he was detained in Werl Prison. He is currently living in Gliwice , Poland . He was initially represented before the Court by Mr O. Heuvens and then by Mr G. Fischer and Mr R. Inman, and is currently represented by Mr S. Braßel , lawyers practising in Düsseldorf.

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 conviction and the execution of his sentence

On 19 September 2001 the Duisburg Regional Court convicted the applicant, a first offender, of seven counts of aggravated sexual abuse of children, seven counts of sexual abuse of children and two counts of sexual abuse of a person entrusted to him. It sentenced him to five years ’ imprisonment.

The Regional Court found that between spring 1995 and October 2000 the applicant had raped his two elder daughters, aged between ten and fourteen and twelve and fourteen respectively, on fifteen occasions and had sexually abused one of them once when she was eight years old.

On 28 April 2003 the applicant was transferred from prison to a social therapeutic institution in Gelsenkirchen , where he made a social therapy.

2. The order for the applicant ’ s preventive detention and its execution

On 15 May 2006 the Duisburg Regional Court , relying on Article 66b § 1 of the Criminal Code read in conjunction with Article 66 §§ 2 and 3 of the Criminal Code (see Relevant domestic law and practice below), ordered the applicant ’ s preventive detention retrospectively ( nachträgliche Sicherungsverwahrung ).

The Regional Court found that the applicant had been convicted in 2001 of felonies and offences against sexual self-determination meeting the requirements of both Article 66 § 3, second sentence, of the Criminal Code and Article 66 § 2 of the Criminal Code.

Moreover, following the applicant ’ s conviction in 2001, evidence had come to light which indicated that the applicant presented a significant danger to the general public (Article 66b § 1 of the Criminal Code). The applicant had confessed to have planned to rape a ten-year-old boy in his prison cell in September 2005 on an open day of the Gelsenkirchen Social Therapeutic Institution. Having consulted a psychological and two psychiatric experts, who had examined the applicant in person, the Regional Court found that the applicant, an alcoholic, had developed a genuine paedophilia and sadistic fantasies and chose his male or female victims almost randomly.

In view of the progressive paedophilia he suffered from, the applicant further had a propensity to commit serious offences, namely sexual offences against children (Article 66b § 1, read in conjunction with Article 66 § 1 no. 3 of the Criminal Code). Finally, a comprehensive assessment of the applicant, 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 sexual offences against children resulting in considerable psychological, and owing to the applicant ’ s sadistic fantasies, possibly also physical harm to the victims (Article 66b § 1 of the Criminal Code). The Regional Court considered it desirable that the applicant ’ s preventive detention be further executed in the Gelsenkirchen Social Therapeutic Institution, where the continuation of his therapy had most prospects of success.

Since 22 May 2006 the applicant, having served his full prison sentence, has been in preventive detention, initially executed in the Gelsenkirchen Social Therapeutic Institution.

On 31 March 2008 the Essen Regional Court declined to suspend the execution of the applicant ’ s preventive detention and to grant probation.

On 3 February 2010 the applicant was transferred from the Gelsenkirchen Social Therapeutic Institution to Werl Prison. The North Rhine-Westphalia Ministry of Justice having refused to grant the applicant any relaxations in the conditions of his detention, the Social Therapeutic Institution considered that it did not have any further offers for treatment suitable for the applicant. In Werl Prison, the authorities could not offer the applicant any therapy, despite his readiness to continue the treatment started in the Gelsenkirchen Social Therapeutic Institution.

3. The proceedings at issue

(a) The proceedings before the Essen Regional Court

On 28 May 2010 the Essen Regional Court , relying on Article 67d § 2 and Article 67e of the Criminal Code (see Relevant domestic law and practice below), ordered the continuation of the applicant ’ s preventive detention.

The Essen Regional Court found that the applicant, who was represented by a court-appointed counsel, was not to be released from preventive detention immediately and automatically as a result of the European Court of Human Rights ’ judgment of 17 December 2009 in the case of M. v. Germany , which had become final. The Regional Court noted that the applicant had not initiated proceedings aimed at a reopening of the proceedings having led to the Duisburg Regional Court ’ s final judgment of 15 May 2006 on which his preventive detention was based. Moreover, as the Federal Constitutional Court had not reversed its case-law in which it had considered Article 66b of the Criminal Code to be constitutional (file no. 2 BvR 226/06; see Relevant domestic law and practice below), the Regional Court could only take into account the European Court of Human Rights ’ findings in the said case when examining the proportionality of the applicant ’ s further preventive detention. However, having regard to the gravity of the applicant ’ s previous offences and the applicant ’ s persisting dangerousness, his preventive detention was not disproportionate.

The Regional Court further considered that it could not be expected that the applicant would not commit any further unlawful acts on his release (Article 67d § 2 of the Criminal Code). It noted that the psychiatric expert it had consulted had found, in accordance with the views taken by experts having previously examined the applicant, that the applicant suffered from paedophilia and showed first signs of sexual sadism. It stressed that it was necessary for the authorities to grant the applicant gradual relaxations in the conditions of his detention in order to allow the courts to have a sufficient basis for the assessment of the applicant ’ s dangerousness in the future. In the court ’ s view, it would be best to retransfer the applicant to the Gelsenkirchen Social Therapeutic Institution which was best suited to carry out relaxations in the conditions of the applicant ’ s detention and to provide the necessary complementary therapeutic treatment.

(b) The proceedings before the Hamm Court of Appeal

On 22 July 2010 the Hamm Court of Appeal quashed the decision of the Essen Regional Court dated 28 May 2010. It ordered that the applicant ’ s preventive detention be suspended and probation be granted on 1 December 2011.

The Court of Appeal found that the applicant ’ s preventive detention could not be declared terminated in view of the European Court of Human Rights ’ judgment of 17 December 2009 in the case of M. v. Germany . It conceded that the order to place the applicant in preventive detention retrospectively violated at least Artic le 5 § 1 of the Convention. The detention had not been justified under sub-paragraph (a) of Article 5 § 1. The judgment of the Duisburg Regional Court of 15 May 2006, by which the applicant ’ s preventive detention had been ordered retrospectively, could not be considered as a “conviction” for the purposes of Article 5 § 1 (a) as it did not contain a new finding of guilt of an offence.

In the Court of Appeal ’ s view, the applicant ’ s detention could also not be based on sub-paragraph (e) of Article 5 § 1 as being the detention of a person “of unsound mind”. The applicant did not suffer from a mental illness. It was true that the experts had diagnosed him with paedophilia, a sexual deviation and a mental disorder. In order for a person to be considered as “of unsound mind” for the purposes of Article 5 § 1 (e), that mental disorder had to attain the same gravity as “any other serious mental abnormality” within the meaning of Artic le 20 of the Criminal Code (see Relevant domestic law and practice below), which was put on a par with a “pathological mental disorder” in that provision. However, all experts to date had excluded that the applicant suffered from a mental illness.

The Court of Appeal considered that despite the fact that the applicant ’ s preventive detention breached Article 5 of the Convention, it was not in a position to declare that detention terminated. The judgment of the Duisburg Regional Court of 15 May 2006, by which the applicant ’ s preventive detention had been ordered retrospectively, had become final. A judgment which had been based on a wrong legal assessment could not be corrected in proceedings concerning its execution, but only by reopening proceedings. The Convention violation could therefore only be taken into consideration in the course of the examination of the proportionality of a person ’ s further preventive detention under Article 67d § 2 of the Criminal Code.

The Court of Appeal considered that, having regard to the principle of proportionality, the applicant ’ s preventive detention was to be suspended and probation be granted on 1 December 2011 (Article 67d § 2 of the Criminal Code). It considered that, by that date, it could be expected that the applicant would not commit any further unlawful acts on his release. In any event, the unjustified refusal, by the executive, of relaxations in the conditions of the applicant ’ s detention, contrary to the experts ’ proposals and causing a deficient basis for the assessment of the applicant ’ s dangerousness, could not be only to the applicant ’ s detriment. Having regard, in addition, to the fact that the applicant ’ s preventive detention violated the Convention, it was necessary to already fix the date for the applicant ’ s release on 1 December 2011.

(c) The proceedings before the Federal Constitutional Court and further developments

On 20 August 2010 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Essen Regional Court dated 28 May 2010 and of the Hamm Court of Appeal dated 22 July 2010. Relying, inter alia , on the European Court of Human Rights ’ judgment in the case of M. v. Germany , he complained, in particular, that his preventive detention, ordered retrospectively, had breached his right to liberty and the prohibition on retrospective punishment under the Basic Law and under Article 5 and Article 7 of the Convention.

On 20 October 2010 the Federal Constitutional Court dismissed the applicant ’ s request for interim measures and refused to grant him legal aid and to assign him a counsel (file no. 2 BvR 1878/10). It found that the applicant ’ s request was ill-founded, in any event, as he had failed to substantiate sufficiently his request. He had failed to submit the documents necessary for the Constitutional Court in order to weigh the applicant ’ s interest in his liberty against the public interest in security. The applicant had not sent, in particular, the documents (notably expert reports) on which the domestic courts had based their findings on the applicant ’ s dangerousness in the proceedings at issue.

Subsequently, on 14 June 2011, the Arnsberg Regional Court decided that the preventive detention order made in the Duisburg Regional Court ’ s judgment dated 15 June 2006 was no longer to be executed. It ordered the applicant ’ s release on 20 July 2011 and the supervision of his conduct.

The Arnsberg Regional Court noted that pursuant to the Federal Constitutional Court ’ s judgment of 4 May 2011 (see Relevant domestic law and practice below), the continuation of a person ’ s preventive detention which had been ordered retrospectively was only authorised if that person, owing to specific circumstances relating to his person or his conduct, was highly likely to 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.

In the Arnsberg Regional Court ’ s view, these requirements were not met in the applicant ’ s case. In particular, having regard to the previous expert reports and to the successful completion, by the applicant, of his therapy, it was not highly likely that the applicant would commit the most serious crimes of violence or sexual offences if released.

On 3 February 2012 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint and dismissed the applicant ’ s request to be granted legal aid and to be assigned a lawyer (file no. 2 BvR 1878/10).

The Federal Constitutional Court found that the constitutional complaint was inadmissible in so far as it had not been directed only against the decision of the Hamm Court of Appeal dated 22 July 2010. In so far as the applicant complained about that latter decision, he had subsequently lost his legal interest in – another – decision by the Federal Constitutional Court by the decision of the Arnsberg Regional Court of 14 June 2011. The latter decision had executed the order in the Constitutional Court ’ s judgment of 4 May 2011. Under that order, the courts dealing with the execution of sentences had to examine without delay whether the persons imprisoned under provisions found to be incompatible 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, could be further detained under the restrictive conditions set out in the Constitutional Court ’ s judgment.

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 th e 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

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, 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)).

Pursuant to Article 66 § 2 of the Criminal Code, the sentencing court may also order preventive detention in addition to a penalty under the following conditions. The person concerned must have committed three intentional offences for which he or she incurred at least one year ’ s imprisonment respectively. He or she must be sentenced to at least three years ’ imprisonment for one or more of these acts. Furthermore, the person must present a danger to the general public for the reasons set out in Article 66 § 1 (3). It is not necessary in this case that the person concerned was previously sentenced to a term of imprisonment or previously served a prison se ntence as stipulated in Article 66 § 1 (1) and (2).

Under Article 66 § 3, second sentence, of the Criminal Code, preventive detention may further be ordered in addition to a prison sentence if the perpetrator is sentenced for two of certain listed serious offences, including rape and sexual abuse of children or of a person entrusted to him, for which he or she incurred at least two years ’ imprisonment respectively. The perpetrator must further be sentenced to at least three years ’ imprisonment for one or more of these acts. Furthermore, the person must present a danger to the general public for the reasons set out in Article 66 § 1 (3). It is not necessary in this case either that the person concerned was previously sentenced to a term of imprisonment or previously served a prison se ntence as stipulated in Article 66 § 1 (1) and (2).

(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 Act 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 its 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, in particular, against sexual self-determination or for any of the offences listed in Article 66 § 3 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 un der the following conditions. A comprehensive assessment of the convicted person, his offences and, in addition, his development during the execution of his sentence must reveal that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims; furthermore, the remaining conditions listed in Article 66 must be met.”

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 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 (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 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).

3. Provision on criminal liability

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.

4. Case-law of the Federal Constitutional Court

(a) Previous case-law on retrospective preventive detention

In its decision of 23 August 2006, a chamber of three judges of the Federal Constitutional Court considered that Article 66b § 2 of the Criminal Code, which authorised the courts to order preventive detention retrospectively, was compatible with the Basic Law (file no. 2 BvR 226/06).

The Federal Constitutional Court , relying on its well-established case-law, found that the said legislative provision did not violate the ban on the retrospective application of criminal laws imposed by Article 103 § 2 of the Basic Law. That ban did not cover preventive detention, which was not a penalty to compensate for guilt, but a purely preventive measure aimed at protecting the public from an offender. Likewise, Article 66b § 2 of the Criminal Code was in conformity with the protection of legitimate expectations guaranteed in a State g overned by the rule of law. The legislator ’ s decision that the paramount public interest in an effective protection of the public from very dangerous offenders outweighed the reliance of the convicted offender on the fact that the law would not be changed to his detriment so as to allow his continued detention was compatible with the Basic Law.

The Federal Constitutional Court further considered that Article 66b § 2 of the Criminal Code did not violate the right to liberty of the person concerned as protected by Article 2 § 2 of the Basic Law. The legislator was authorised under that provision of the Basic Law to deprive of his liberty a person who had to be expected to commit offences against the life or limb or the liberty of the citizens, having regard to the principle of proportionality. As Article 66b § 2 of the Criminal Code applied only in very exceptional cases, that provision had to be considered as a proportionate restriction on the right to liberty.

In the circumstances of the case before it, the Federal Constitutional Court found, however, that the application of Article 66b § 2 of the Criminal Code and the lower courts ’ order of preventive detention against the complainant had breached the complainant ’ s right to liberty because the restrictive requirements of Article 66b § 2 of the Criminal Code had clearly not been met in his case.

(b) Recent case-law on preventive detention

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 and Article 66b § 1 of the Criminal Code in its version of 13 April 2007.

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 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. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.

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

Relying on the Court ’ s judgment in the case of M. v. Germany ( cited above ), the applicant argues that his preventive detention breached Article 5 § 1 and Article 7 § 1 of the Convention. He stresses, in particular, that his preventive detention was not ordered by the sentencing court when convicting him, but was imposed retrospectively, under a legal provision which entered into force after he had committed his offences and after he had been convicted.

The applicant further submits that following the abolition, by the legislator, of Article 66b § 1 of the Criminal Code, on which his preventive detention was based, the domestic courts ’ failure to apply that milder law to him breached Article 7 of the Convention.

Moreover, in the applicant ’ s submission, his preventive detention, ordered retrospectively, breached the prohibition on double punishment under Article 4 of Prot. no. 7 to the Convention.

The applicant further complains under Article 6 and Article 13 of the Convention that his right to a fair trial within a reasonable time was violated as he did not have at his disposal an effective remedy to complain about his ongoing detention, in particular before the Federal Constitutional Court, and that this Court ’ s case-law was arbitrarily disregarded.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the applicant ’ s retrospective preventive detention fall within any of the sub-paragraphs (a) to (f) of Article 5 § 1?

2. 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 case, as proscribed by Article 7 § 1 of the Convention, by the order for the continuation of his retrospective preventive detention ?