CONCURRING OPINION OF JUDGE RAVARANI

Translation

1. I agree with my colleagues that there was no violation of Article 7 of the Convention, and also concur with the other parts of the judgment. The reason I am setting out a separate opinion is that I think that some clarification is needed in the wording of the general principles set out in paragraphs 202 to 209 of the judgment concerning Article 7 of the la Convention.

2. The Court concludes that, particularly “where domestic law does not classify the measure as a penalty and it has a therapeutic aim, a significant change in the conditions of imposition of the measure, in particular, may cancel out the classification as a ‘penalty’ which it would have had for the purposes of Article 7 of the Convention before the change, even if the measure is still being imposed on the basis of the same order as before”. Furthermore, the Court considers that “the wording of Article 7 § 1, second sentence, according to which no heavier penalty may be ‘imposed’ than the one that was applicable at the time the criminal offence was committed, does not stand in the way of an interpretation of this provision which has regard to the fact that a measure may continue to be ‘imposed’ over a longer period of time while changing its manner of execution, and thus its characteristics, during its imposition” (see paragraphs 206-207 of the judgment).

3. In short, as the Court makes clear in paragraph 208, some of the criteria set out in the case-law of the Court to assess whether a measure constitutes a penalty for the purposes of Article 7 are “static” or “not susceptible to change after the point in time when the measure was ordered”. That holds particularly for the criterion on whether the measure in question was imposed following conviction for a “criminal offence” or that of the procedures involved in its making. “In contrast, other criteria, including those of the nature and purpose of the measure and of its severity, can be described as ‘dynamic’ or susceptible to change over time”. Therefore, “in order to assess the compliance of a measure with Article 7 § 1 during a given period, the actual manner in which the measure was executed throughout that period must therefore be considered relevant and must be taken into consideration by the Court” (see paragraph 208 of the judgment).

4. Such reasoning calls for clarification in order to prevent any misunderstandings. We might, in fact, have to accept that the “punishment” concept under Article 7 was not fixed and objective but fluid or “dynamic”, as stated in paragraph 208 of the judgment itself, in the sense that we could be dealing with either a “penalty” or an “enforcement measure”, depending on the conditions of its implementation.

5. Admittedly, the judgment also refers to measures which are “static”, or not susceptible to change after the time when they are ordered, more specifically targeting measures which are imposed on a person convicted of a “criminal offence” and the criterion of the procedures involved in its making. However, there is something else: in order to remain within one of the categories used by the Court, even in terms of the measure itself, a distinction might be drawn between a static element and a dynamic element after the adoption of the said measure. Yet these terms seem rather unsuited to reflecting the reality underlying the punishment envisaged by Article 7. It would appear more appropriate to distinguish between the actual nature – under domestic legislation – of a measure ordered (which is its abstract aspect) and its effective implementation (which is its concrete aspect).

6. It is essential to ascertain the actual nature of a measure in the light of Article 7, because this marks a necessary stage in delimiting the respective scopes of that provision and of Article 5 (1) of the Convention. The latter prohibits, in principle, depriving an individual of his liberty, but authorises it under certain conditions. Those conditions include, in particular, that, set out in indent (e), of persons of unsound mind, who may be detained under very specific conditions as defined by the case-law of the Court (see paragraphs 126 et seq. of the judgment).

7. The starting point in the Ilnseher case was as follows: the applicant was first of all convicted under the German Penal Code and subsequently sentenced to “preventive detention”, which, according to the classification used in German legislation, is not a criminal penalty but an amending measure which, when applied as in the present case to a psychiatric patient, must be carried out in a hospital providing adequate psychological and psychiatric treatment. In fact the applicant, immediately after the measure was ordered, had been in a prison providing no medical support, and had only afterwards been transferred to an appropriate establishment providing treatment worthy of the name.

8. The Court was called upon to adjudicate on the compatibility with the Convention of that second phase of detention under Article 7, which prohibits penalties which are not prescribed by law and those imposed retroactively. In the instant case the issue was the “penalty” categorisation, to the extent that if the Court reached the conclusion that the measure had not amounted to a penalty, there had been no breach of Article 7. The question was whether, in assessing whether or not the measure constituted a penalty, the Court could confine itself to the classification used by domestic law and, if – as was actually the situation in the present case – domestic law did not classify the measure as a criminal penalty, immediately rule out the applicability of Article 7, going on to assess whether the conditions of detention had been compatible with the requirements of Article 5 § 1 (e).

9. Such an approach would have excessively restricted the scope of Article 7, and, furthermore, would have allowed the State to escape that provision (from which no derogation is permissible under Article 15 of the Convention, whereas the reinforced protection laid down in the latter provision is not applicable to Article 5) by merely laying down in its legislation that certain detention measures did not come under criminal law. It would be underestimating the Court’s power and duty to confer an autonomous meaning on the concepts used in the Convention, which process is vital if the Court is to apply the same standards to all member States (and which also prevents States from attempting to elude the application of the Convention, or of specific provisions thereof, by resorting to abusive or erroneous characterisations).

10. In fact, in order to characterise a measure as a penalty, the Court merely regards the classification of a measure under domestic legislation as one stage (among others, for example the imposition of the measure following a criminal conviction), which stage might be described as “abstract”. Where a measure is not classified as a penalty, the Court will consider how it is conceived : it will assess the nature and purpose of the measure (in particular its preventive or punitive intent), the procedures involved in the making and implementation of the measure, and its severity (see Welch v. the United Kingdom , 9 February 1995, § 28, Series A no. 307 ‑ A, and Del Río Prada v. Spain [GC], no. 42750/09, § 82, ECHR 2013).

11. And indeed, in the present case, the Court assessed not only how the measure was conceived but also how it was enforced , pushing its autonomous assessment of the actual situation to very great lengths. The conclusion it reached is that the nature of a measure can change in the course of its enforcement. Depending on its mode of enforcement, it can successively take on the characteristics of a penalty, a therapeutic measure, possibly reverting to being a penalty, and so on. This is what the Court refers to as the “dynamic” aspect of the measure.

12. There is one obvious drawback: if a measure can change in nature during its period of enforcement – in the worst case changing several times at very short intervals – the definition of a “penalty” is liable to suffer, or even be deprived of all effective substance.

13. That being the case, could we consider a two-stage assessment, starting with an examination of the characterisation of the measure in national legislation – a penalty or a measure – and then go on to consider how national legislation provides for its enforcement, after which the Court could effect an autonomous interpretation of the domestic legal provisions in order to decide whether, under Article 7 of the Convention, it is a case of a penalty or another measure? That is where the examination of the measure’s compatibility with Article 7 would end. If it transpired from the assessment that domestic law classified the measure as non-criminal and provided for a mode of execution lying outside the criminal-law field, Article 7 would not have been violated. And if the concrete, de facto mode of enforcement of a measure classified in law as “therapeutic” amounted to a deprivation of liberty at variance with Article 5 (1) (e), the latter provision would have been breached rather than Article 7.

14. We might wonder whether such an approach covers all the existing realties in this sphere and the whole range of situations which can arise, and in particular whether it covers the present case. In the instant case, not only did the law classify the measure as “preventive detention” and not as a penalty, but it also prescribed appropriate treatment in an establishment specialising in psychological disorders. However, as regards the facts, pursuant to a systematic and consistent administrative practice , such measures were – for an initial period, until the applicant was transferred to a new suitable establishment – enforced in prisons that did not offer appropriate treatment. The situation was not accidental, but structural: all persons held in preventive detention who were suffering from a mental disorder were systematically and invariably held in prisons, for the simple reason that no specialised establishments existed. In view of that situation, can we consider that the measure was not a penalty, knowing that in line with systematic administrative practice it was enforced in exactly the same way as a penalty? Should we not take into account all the structural facts and conclude that the measure indeed constituted a penalty?

15. If we consider that a measure which is classified as therapeutic by domestic law, and which, moreover, provides for its enforcement in an appropriate establishment, but which is systematically enforced in a prison, constitutes a penalty, does any mode of execution which does not comply with domestic legislation providing for a measure other than a penalty nonetheless constitute a penalty if, in practical terms, such execution is akin to a deprivation of liberty, which is incompatible with that provision? The answer is no: if the deprivation of liberty infringes the requirements of domestic law and is not the subject of a general and systematic administrative practice, in other words if the deprivation of liberty is proved to be a situational, accidental, short-lived and non-systematic phenomenon, it breaches the requirements of Article 5 (1) (e).

16. Therefore, the criterion for the applicability of Article 7 would appear, above and beyond the classification of a detention measure under national law, to be the systematic or structural nature of the enforcement of the measure : if, under the autonomous criteria applied by the Court, a therapeutic measure is systematically enforced – either pursuant to national law (and even if the latter states that such measure does not constitute a penalty), or in line with a general administrative practice – according to procedures classifying it as a penalty under the criteria applied by the Court, it constitutes a penalty for the purposes of Article 7. If the actual mode of enforcement is unlawful but is not part of a system, it constitutes deprivation of liberty contrary to Article 5 (1) (e).

17. The application of the aforementioned criterion looks complicated and unwieldy at first sight, but one may doubt whether that really is the case. It has the advantage of not unduly reducing the scope of Article 7 and allowing the Court to probe deeply into the realities of the case. It also permits the conclusion that if the administrative practice changes during the enforcement of a measure the nature of the measure may also change . In the present case, after the radical changes brought in by the German authorities, a measure which, by dint of its mode of enforcement, fell under criminal law changed its nature and became a therapeutic measure.

18. Does such a system under which a measure can change its nature during its enforcement comprise any risks, for instance where an unsavoury regime has attempted to use it to pretend that measures hitherto classified as penalties are therapeutic? In fact, there would not appear to be any such risk, and the system in question could even reinforce the applicability of Article 7 (from which no derogation is permissible, which is not the case of Article 5). There are two possible scenarios: either a penalty becomes a measure or a measure becomes a penalty. In both cases, by definition, the law must classify the measure ab initio as a measure and not as a penalty, otherwise the Article 7 criteria are met ipso facto . In the first scenario, which applies to the instant case, unacceptable, unlawful conditions of enforcement are replaced by appropriate conditions. The Court will assess whether the latter are indeed appropriate. It is difficult to imagine a regime “abusing” the possibility of improving the conditions of enforcement. In the second case, the administrative practice degenerates and the formerly acceptable treatment of persons subject to a therapeutic measure is enforced in a non-therapeutic manner rendering it akin to imprisonment. The Court will hold that the measure now falls foul of Article 7 because it has all the hallmarks of a penalty. This would expose an illiberal regime to tighter supervision by the Court.

19. In conclusion, I am in full agreement with the passages in the judgment stating that a measure may change in nature in the course of its execution, but it should be made clear that that is only possible if (1) domestic law classifies the measure as therapeutic; (2) domestic law provides for a mode of enforcement which, according to the Court’s autonomous benchmarks, rules out classification as a penalty; and (3) the consistent administrative practice enables the Court to rule out classification as a penalty under an autonomous assessment. In the present case, over the period to be assessed by the Court, those three concurrent criteria were fulfilled.