PARTLY DISSENTING OPINION OF JUDGE SICILIANOS

Translation

1. I voted with the majority for a finding of no violation of Article 5 § 1 of the Convention, agreeing with the conclusion that in so far as the applicant’s subsequently-ordered preventive detention was enforced pursuant to the impugned 20 June 2013 judgment up until 18 September 2014 in the Straubing detention centre, it was justified under Article 5 § 1 (e). Apart from the fact that the applicant suffers from a mental disorder and that he is still dangerous, the decisive argument in reaching that finding was the considerable improvement in the applicant’s conditions of detention over the period under review, including, above all, his placement in an establishment suited to the needs of psychiatric patients.

2. It is clear from the Court’s established case-law that conditions of detention are an important factor for the lawfulness of detention. Thus the Court has found on several occasions that detention ordered “in accordance with a procedure prescribed by law” may prove incompatible with Article 5 § (1) of the Convention if the conditions of detention are (or become) inappropriate (see, among many other authorities, the leading judgment in the case of Bouamar v. Belgium , 29 February 1988, Series A no. 129). That was explicitly acknowledged by the respondent Government in the present case in its unilateral declaration concerning the period between 3 August 2012, when the Regional Court adopted its judgment, and 20 June 2013. The contrary proposition – that is to say a finding that unlawful detention has become lawful because of a substantial improvement in the conditions of detention – is, on the face of it, more difficult to accept. However, the arguments set out in paragraphs 162-169 of the judgment in particular convinced me that the applicant’s detention during the period in issue had been justified under Article 5 (1) (e) of the Convention.

3. It would, however, be a quantum leap to conclude that the positive developments in the applicant’s conditions of detention, particularly his placement in an appropriate therapeutic institution, also suffice to justify the impugned detention in the light of Article 7 § 1 of the Convention. It should be remembered that the impugned facts date back to 1997, when the applicant was nineteen years old, and that he was convicted in 1999. At the time, the Law on Youth Courts had not authorised preventive detention orders for minors or young adults such as the applicant. That option has only been available since 12 July 2008, when the Act of 8 July 2008 introducing subsequent preventive detention in cases of convictions based on criminal law applicable to young offenders came into effect (see paragraphs 55 and 56 of the judgment). The 3 August 2012 order placing the applicant in preventive detention was based on that new law. Consequently, it is obvious that the applicant’s situation was affected by a legislative provision which had not been applicable at the time of the offence. Now, according to Article 7 § 1 of the Convention “... a heavier penalty (shall not) be imposed than the one that was applicable at the time the criminal offence was committed”. The whole question is therefore whether the impugned measure amounted to a “penalty” within the autonomous meaning of that concept under the Convention.

4. As the Court pointed out in paragraph 203 of the judgment:

“The concept of ‘penalty’ in Article 7 is autonomous in scope. To render the protection afforded by Article 7 effective the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a ‘penalty’ within the meaning of this provision (see Welch v. the United Kingdom , 9 February 1995, § 27, Series A no. 307 ‑ A; Jamil v. France , 8 June 1995, § 30, Series A no. 317 ‑ B; and Del Río Prada , cited above, § 81). The wording of the second sentence of Article 7 § 1 indicates that the starting-point – and thus a very weighty factor (see Glien , cited above, § 121; and Bergmann , cited above, § 150) – in any assessment of the existence of a penalty is whether the measure in question was imposed following conviction for a ‘criminal offence’. Other relevant factors are the characterisation of the measure under domestic law, its nature and purpose, the procedures involved in its making and implementation, and its severity (see Welch , cited above, § 28; Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 ‑ XV; and Kafkaris , cited above, § 142).”

5. As regards the first factor mentioned above, the judgment reiterates that the impugned measure was “linked to the conviction – and thus ‘following’ the latter – as it was a precondition for the preventive detention order under section 7 (2) of the Juvenile Courts Act (see paragraph 56 above) that the young offender concerned had been imposed a sentence of at least seven years for a felony, in particular, against life, physical integrity or sexual self-determination” (see paragraph 215 of the judgment).

6. Concerning the criterion on procedures involved in the making of the impugned measure, it should be noted that the measure was made by a criminal court in accordance with the applicable provisions of the Code of Criminal Procedure. Moreover, as noted in paragraph 215 of the judgment, “the procedure concerning the offender’s preventive detention had to be based on evidence obtained prior to the end of the term of imprisonment imposed for the said offence.”

7. In short, the criteria which the judgment describes as “static” or “not susceptible to change after the point in time when the measure was ordered” – that is to say the existence of a measure imposed following a conviction for an offence and the criterion on procedures involved in its making – (see paragraph 208 of the judgment) argue in favour of classifying the measure in question as a “penalty” for the purposes of Article 7 of the Convention.

8. We must now examine the so-called “dynamic” criteria, that is to say the nature, the aim and the severity of the impugned measure.

9. As regards the “severity” criterion, I first of all note that its characterisation as “dynamic” is based on the fact that the applicable provisions specify neither a maximum nor a minimum length of preventive detention (see paragraphs 232 and 234 of the judgment). In other words, the detention can be terminated on the basis of the subsequent assessment of the applicant’s situation and of the danger which he represents, in the case of a positive assessment, but on the other hand it might – theoretically at least – continue for the rest of his life. That is why the majority agrees that preventive detention has “therefore remained among the most serious measures which could be imposed under the Criminal Code” (see paragraph 232 of the judgment).

10. Personally, I doubt that the severity of preventive detention constitutes a “dynamic” criterion. I would point out, in that regard, that the third Engel criterion has regard to the maximum severity of the measure, in accordance with the applicable provisions. In other words, the third Engel criterion – which constitutes the principal source of inspiration in the present case – is not flexible or changeable but inflexible and rigid. If it were to be applied as it stands in the instant case, regard would have to be had solely to the fact that the applicable law does not set out any maximum period and that the preventive detention can consequently continue for the person’s whole life.

11. At any event, the applicant had finished serving his sentence on 17 July 2008 and today, more than ten years later, he is still in detention. Under those circumstances I consider that the severity of the impugned measure is a further argument in favour of classifying it as a “penalty”. Although the statistics mentioned in paragraph 232 of the judgment – to the effect that at March 2017 591 persons were being held in preventive detention in Germany, which at the time had a population of 81 million – indicate that the impugned measure is used sparingly, from the legal point of view those statistics cannot alter the characterisation of preventive detention as a “penalty” within the autonomous meaning of the concept.

12. We now come to the nature and the aim of preventive detention. This is the principal criterion on which the majority relied to find that the impugned detention did not constitute a “penalty”. In my view, it might nevertheless be legitimate to ponder whether that criterion, which is “dynamic” and therefore flexible and changeable, could conceivably counterbalance the other three criteria mentioned previously. In other words, can the nature and aim of the detention turn a “penalty” into a mere preventive measure falling outside the scope of Article 7 of the Convention?

13. In attempting to answer this crucial question, I note that in rounding up the discussion of the nature and aim of the impugned measure, the majority accepts that “‘ordinary’ preventive detention which is not executed with a view to treating the detainee’s mental disorder, even if implemented in accordance with the new legislative framework, still constitutes a penalty for the purposes of Article 7 § 1 of the Convention. The improved material conditions and care do not, in these circumstances, suffice to erase the factors indicative of a penalty” (see paragraph 228 of the judgment). In other words, the decisive point in “eras[ing] the factors indicative of a penalty” is not so much the improvement of material conditions and care – which can fluctuate over time and is therefore unreliable – but rather the aim of the measure, which must focus on “treating the detainee’s mental disorder”.

14. With specific regard to the aim of the preventive detention, the judgment would appear to indicate that that aim is in fact twofold. As paragraph 223 of the judgment points out, “[t]reatment aimed at reducing the threat these persons pose to the public to such an extent that the detention may be terminated as soon as possible is now at the heart of that form of detention, both in the interest of the detainee and in that of the public . ” In other words, preventive detention is geared, first of all, to reducing the danger which individuals such as the applicant pose to society, and secondly to helping the latter to reintegrate into society. The “collective interest” takes precedence over the interests of the detainee.

15. This overall approach would seem to explain the majority’s attitude to the relative inertia of the authorities at the Straubing detention centre. Indeed, it emerges from the judgment and the case-file that although the staff at the centre made themselves available to the applicant and provided him with “adequate” and “sufficient” treatment (see paragraph 221 of the judgment), it would not appear that during the impugned period the staff in question offered the applicant any concrete, practical therapeutic protocol or tried to persuade him to follow such a protocol by explaining that it was in his own interests to do so. In substance, the staff would appear to have told the applicant “if you decide to accept treatment, we are there to treat you”. Is such an attitude sufficient to pursue the therapeutic aim of preventive detention vigorously enough to erase any other weighty arguments in favour of characterising this measure as a “penalty”? With all due respect to the majority, I think not. I consider that the therapeutic aim criterion, which seems to constitute the majority’s main argument, is in fact a fairly weak criterion – at least in the particular circumstances of the present case.

16. More generally, the use of a criterion which is “dynamic”, and therefore ongoing and changeable by definition, could well lead to uncertainties incompatible with the substance of the nullum crimen nulla poena sine lege principle. It is almost platitudinous to reiterate that that principle is the cornerstone of criminal law and criminal proceedings, and that it forms part of the hard core of the Convention, as a provision from which no derogation is permissible. Any attempt to limit its scope would require recourse to criteria which are reliable and stable enough to ensure the certainty of the law necessary in criminal matters.

17. For all those reasons I believe that the impugned measure was a “penalty”, that it fell within the ambit of Article 7 of the Convention, and that there was a violation of that provision in the instant case.