FIFTH SECTION

Application no. 27081/09 Klaus-Dieter TOMEO against Germany lodged on 18 May 2009

STATEMENT OF FACTS

The applicant, Mr Klaus-Dieter Tomeo , is a German national, who was born in 1957 and was detained in Bruchsal Prison before his release was ordered on 14 December 2011. He is represented before the Court by Mr C. Schneble , a lawyer practising in Offenburg .

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

On 20 March 1990 the Rottweil Regional Court convicted the applicant on four counts of sexual coercion, committed in July 1989 against a mentally handicapped twenty-year-old man and a twenty-two-year-old man. It sentenced him to six years and six months ’ imprisonment and ordered his preventive detention under Article 66 §§ 1 and 2 of the Criminal Code (see ‘ Relevant domestic law ’ below). The court had regard to the findings of a neurological and psychiatric expert, S., who had diagnosed the applicant with a personality disorder ( psychopathy ) which was not, however, pathological. It therefore found that the applicant had acted with full criminal responsibility in three cases and with diminished criminal responsibility in one case only as a result of his having been drunk.

The Rottweil Regional Court further noted that the applicant had previously been convicted of manslaughter and sentenced to seven years and six months ’ imprisonment in 1977 for having strangulated his thirteen ‑ year-old male partner. Furthermore, he had been convicted of sexual assault and bodily injury of a nineteen-year-old man and had been sentenced to four years ’ imprisonment in 1982. Owing to his propensity to commit offences, there was a risk that he would commit further serious crimes against the sexual self-determination of others. His preventive detention was therefore necessary for the protection of the public.

From 12 September 1996 onwards the applicant, having fully served his prison sentence, was in preventive detention for the first time, executed initially in Freiburg Prison.

On 26 July 1999 the Freiburg Regional Court , dealing with the execution of sentences, ordered that the applicant ’ s preventive detention be executed in a psychiatric hospital (Article 67a of the Criminal Code, see ‘ Relevant domestic law ’ below). On 17 April 2000 the Tübingen Regional Court quashed that decision and ordered the applicant ’ s retransfer to Freiburg Prison as the treatment in a psychiatric hospital had not yielded any success.

The applicant had served ten years in preventive detention on 12 September 2006.

On 19 December 2006 the Freiburg Regional Court ordered the continuation of the applicant ’ s preventive detention. It further refused to order the execution of that measure in a psychiatric hospital (Article 67a §§ 1 and 2 of the Criminal Code) as it had done already in 2002, 2004 and 2006, as it considered that the applicant ’ s reintegration into society could not be better promoted thereby.

2. The proceedings at issue

(a) The decision of the Freiburg Regional Court

On 5 January 2009 the Freiburg Regional Court ordered the applicant ’ s preventive detention imposed in the Rottweil Regional Court ’ s judgment to continue. Relying on Article 67d § 3 of the Criminal Code (see ‘ Relevant domestic law ’ below), the court found that there was still a danger that the applicant, owing to his criminal tendencies, would commit serious sexual offences resulting in considerable psychological or physical harm to the victims if released.

The Regional Court had consulted a psychiatric expert, R., on the applicant ’ s dangerousness. In his report dated 27 September 2008 that expert had considered that the applicant suffered from a narcissistic and dissocial personality disorder which was at the root of his previous serious sexual offences. Only the applicant ’ s readiness to use violence had diminished since his previous examinations as a result of his aging. The expert further considered that the applicant had to undergo therapeutic treatment. However, a social therapy in 1991 and his treatment in a psychiatric hospital in 1999 had been ended without having achieved success as the applicant had kept denying dangerous traits of his personality and his previous offences. As the applicant lacked any motivation to change, a therapy did not currently have prospects of success. Having regard to the applicant ’ s personality, there was a higher risk than the average risk of recidivism of 20 per cent for violent sexual offences that he would reoffend if released.

The Regional Court endorsed the findings of the expert and estimated the risk that the applicant would commit further serious sexual offences similar to those he had been found guilty of at more than 50 per cent. In these circumstances, the applicant ’ s continued preventive detention beyond ten years was also proportionate.

(b) The decision of the Karlsruhe Court of Appeal

On 6 February 2009 the Karlsruhe Court of Appeal dismissed the applicant ’ s appeal. Endorsing the reasons given by the Regional Court , it considered, in particular, that the report submitted by expert R. was thoroughly reasoned and that the prison authorities had not failed to take reasonable measures aimed at reducing the applicant ’ s dangerousness.

(c) The decision of the Federal Constitutional Court

By submissions dated 18 February 2009, which were received on 2 March 2009, the applicant, who was no longer represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the Court of Appeal ’ s decision ordering the continuation of his preventive detention.

The applicant argued, in particular, that in view of the fact that his preventive detention had lasted already for more than twelve years, the report submitted by expert R. failed to comply with the strict standards set by the Federal Constitutional Court for the establishment of his dangerousness. The Court of Appeal ’ s decision had therefore breached his right to a fair trial and the principle of proportionality. He relied on his constitutional right of human dignity, the rule of law, the fundamental rights in court laid down in Article 103 of the Basic Law (see ‘ Relevant domestic law ’ below) and the guarantees relating to deprivations of liberty under Article 104 of the Basic Law (see ‘ Relevant domestic law ’ below) as well as Article 6 of the Convention.

On 8 April 2009 the Federal Constitutional Court refused to grant the applicant legal aid and to assign him a lawyer and declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 454/09).

3. Subsequent developments

Following the applicant ’ s attempt to commit suicide in Freiburg Prison on 3 March 2011 and his treatment in hospital, he was transferred to Bruchsal Prison on 30 March 2011.

On 14 December 2011 the Karlsruhe Court of Appeal declared the applicant ’ s preventive detention terminated.

B. Relevant domestic law

1. Provisions on preventive detention

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:

(a) The order of preventive detention by the sentencing court

The sentencing court may, at the time of the offender ’ s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code).

In particular, 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 its version in force at the relevant time).

Furthermore, the sentencing court may order preventive detention in addition to the penalty under Article 66 § 2 of the Criminal Code if the person concerned committed three intentional offences for each of which he incurred a term of imprisonment of at least one year and if the person is sentenced for one or more of these offences to at least three years ’ imprisonment. In addition, a comprehensive assessment of the person 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 person presents a danger to the general public. It is not necessary under that provision that the perpetrator has been previously convicted or detained.

(b) 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. 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).

Under Article 67d § 1 of the Criminal Code, in its 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 applicable at the relevant time, 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. 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 .

(c) The 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 if the perpetrator ’ s reintegration into society can be better promoted thereby. The court may quash that decision if it later emerges that no success can be achieved by placing the perpetrator in a psychiatric hospital (Article 67a § 3).

2. Provisions of the Basic Law

Article 103 of the Basic Law lays down fundamental rights in court. It guarantees the right to be heard in court (§ 1), the prohibition of retrospective punishment (§ 2) and the right not to be punished twice for the same offence (§ 3).

Article 104 of the Basic Law contains guarantees in case of a deprivation of liberty. In particular, under paragraph 1 of that provision, personal liberty may only be restricted pursuant to a formal law and in compliance with the procedure prescribed therein. Moreover, persons in custody may not be subjected to mental or physical ill-treatment.

COMPLAINTS

The applicant complains under Article 3 of the Convention that his continued preventive detention for more than twelve years in breach of Article 67d § 3 of the Criminal Code and the manner of its execution (in particular the refusal to offer him adequate therapeutic treatment and the imposition of numerous disciplinary measures) were disproportionate, unlawful and amounted to torture and inhuman treatment.

Relying on Articles 1, 2 and 6 of the Convention, he further claims that his right to a fair trial and the prohibition of double punishment were violated. In particular, he was diagnosed as dangerous to the public following insufficient expert examinations.

QUESTION TO THE PARTIES

Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention in so far as he was remanded in preventive detention in the proceedings at issue beyond the ten-year maximum duration applicable at the time of his offence and conviction?

In particular, having regard to the Court ’ s case-law as established 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?