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FIFTH
SECTION
DECISION
Application no.
22919/07
Klaus Rudolf BRÄUNIG
against Germany
The
European Court of Human Rights (Fifth Section), sitting on
10 May 2012 as a Chamber composed of:
Dean Spielmann, President,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ann Power-Forde,
Angelika
Nußberger,
André Potocki, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
regard to the above application lodged on 23 May 2007,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Klaus Rudolf Bräunig, is a German national who was
born in 1944. He is currently serving a sentence of life imprisonment
in Diez prison, Rhineland-Palatinate. He was represented before the
Court by Mr K. Wasserburg, a lawyer practising in Mainz, in
cooperation with Mr O. Lagodny, a professor at Salzburg
University.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
1. Background to the case
- The
applicant was arrested in the night of 20 June 1970 while trespassing
on a residential estate in a Mainz suburb where he was suspected of
having engaged in voyeuristic activities. The arrest occurred within
the scope of police surveillance measures carried out following the
killing of two women, mother and daughter, in the night of 12 April
1970 in a nearby housing area in Mainz. On an evening a couple of
days before the killings a man had been noticed in the garden of the
victims’ house at night while observing the daughter through
her bedroom window. There were thus grounds for suspecting that the
two women had been killed by the said voyeur.
- In
the course of police interrogations carried out during the week
following his arrest, the applicant first confessed having engaged in
voyeuristic activities on several occasions in the past, then
admitted to having assaulted a girl on two occasions in 1969 and,
finally, he confessed to the killing of the two women in the night of
12 April 1970. On the occasion of subsequent interrogations and
interviews during his pre-trial detention, the applicant - while
maintaining his confession that he had engaged in voyeuristic
activities in the past - repeatedly withdrew and renewed his
confessions regarding the sexual assaults in 1969 and the killings in
1970. His description of the order and the way in which the killings
had been committed differed from the account given on the occasion of
his first confession.
- On
13 August 1970 the applicant - now represented by counsel -
finally revoked all previous confessions regarding the assault and
killings and has protested his innocence ever since.
- According
to the bill of indictment submitted by the Public Prosecutor to the
Mainz Regional Court on 30 March 1972, it was likely that the
applicant had first killed the daughter and subsequently the mother
in order to cover up the daughter’s murder.
- In
the course of the applicant’s subsequent trial it was
established that during the period from 1967 to 1970 the applicant
had been active as a voyeur on numerous occasions. He had approached
the homes of several girls or young women in the dark in order to
observe them from outside. On most occasions he had further
tried to draw his victims’ attention to himself, asked them to
have sexual intercourse and masturbated in front of their windows.
His attempts to enter the women’s homes by force were generally
to no avail. However, on two occasions in 1969 the applicant managed
to enter the home of an unsuspecting young woman through an open
window and knocked her down when she rejected his sexual advances. As
regards the killings of the two women in April 1970, the court found
it established that during the period from the end of March to
10 April 1970 the applicant had repeatedly observed the
17-year-old daughter at night through the window of her bedroom in
her parent’s house in Mainz. In the night of 12 April 1970
the applicant broke into the family’s home with a view to
having sexual intercourse with the girl. He first killed the mother
who had woken up when he had entered the house with a knife he
carried along. He then went to the daughter’s bedroom. When the
latter rejected his sexual advances, the applicant - out of anger and
sexual frustration - hit and stabbed the girl in the head and throat
with his knife so that she bled to death.
- In
its judgment of 19 July 1972 (file no. 2 Ks 2/72) the Mainz
Regional Court held that the applicant had killed both women out of
base motives. The Regional Court based its findings in particular on
the applicant’s detailed description of the crime scene in the
course of the preliminary proceedings as well as on his account of
the events given on the occasion of his first confession of the
killings in June 1970.
- Referring
to the opinions of two psychiatric experts, the Regional Court
considered that the applicant was suffering from a sexual deviation
that had reached addictive dimensions and could considerably restrict
his ability to control his acts in a sexual context. However, his
sexual deviation did not amount to a mental illness that would
exclude his criminal responsibility. In view of the particular
gravity of the offences and the applicant’s guilt the Regional
Court also saw no reason to mitigate the applicant’s sentence.
- Consequently,
the Regional Court found the applicant guilty on two counts of murder
and sentenced him to life imprisonment in each case in accordance
with Article 211 of the German Criminal Code.
- On
6 December 1973 the Federal Court of Justice, after hearing the
applicant and the Federal Prosecutor General (Generalbundesanwalt)
rejected the applicant’s appeal on points of law as
ill-founded.
- By
a decision of 22 June 1982, confirmed on appeal, the Bad
Kreuznach Regional Court dismissed the applicant’s request for
a reopening of the proceedings as inadmissible.
2. Previous reviews of the applicant’s detention
and the execution of his sentence
- On
13 November 1984 the Koblenz Regional Court, having heard the
applicant, the Diez prison authorities as well as the Mainz public
prosecution authorities, concluded that in the case at hand the
particular gravity of the applicant’s guilt justified the
continuation of his detention for more than the minimum period of
fifteen years envisaged for murder. However, the Court of Appeal
specified that such finding did as a rule not exclude the suspension
of the remainder of a life sentence at a later stage, for instance
after a period of 18, 20 or 25 years.
- In
the following years various psychiatric and psychologist expert
opinions were obtained by the Diez prison authorities on the question
whether the applicant could be granted relaxations of his detention
(Vollzugslockerungen) and whether his future release on
probation was conceivable.
- For
instance, a psychiatric expert stated in an opinion rendered on
20 May 1985 that the applicant’s perversion had developed
progressively and had finally escalated in destructive behaviour. The
expert further found that the applicant’s insistence on his
innocence had meanwhile reached a pathological quality in itself and
prevented him from accepting therapeutic help. It was thus impossible
from a psychiatric point of view to assess whether the applicant had
actually committed the crimes or to give a reliable criminal
prognosis for the future. Having regard to, inter alia, the
applicant’s unobtrusive behaviour during detention, the expert
saw no acute risk of recidivism and proposed to test the applicant’s
capacity to cope with life outside prison on the occasion of
relaxations of his detention. He nevertheless specified that a
theoretical risk that the applicant would commit further crimes could
not be excluded.
- In
a statement of 6 January 1989 the resident psychologist at Diez
prison pointed out that the applicant still had problems in
establishing interpersonal relations and trivialised his voyeurism.
Thus, a potential danger that the applicant’s sexual perversion
would resurge in the event of his release on probation could not be
excluded.
- However,
in a statement of 12 November 1990 a Limburg psychotherapist who
had provided regular outpatient psychological treatment to the
applicant since July 1970 found that, having regard to the therapy
carried out so far, there was “no compelling reason to assume”
that the applicant had been intellectually capable of organising and
committing the crimes. Consequently, it was also not to be expected
that he would be capable of committing similar crimes in the future.
- The
applicant was granted first relaxations of his detention from
September 1991. However these relaxations were later revoked as a
consequence of an expert opinion by a professor of Mainz University
rendered in September 1993. This expert stated that as a consequence
of inappropriate therapy measures during his detention the applicant
had taken to insist on his innocence and had become resistant to any
further therapy attempts. The expert was of the opinion that
irrespective of the fact that relaxations of the applicant’s
detention in the past had not given cause for complaints, there was a
high risk that he would reoffend if confronted with conflict
situations similar to the one that had been at the origin of the
murders. In this expert’s opinion the danger the applicant
posed to society was not lower than at the time he had committed the
crimes.
- A
further psychiatrist opinion of 4 October 1994 considered that
the applicant had made considerable progress as regards his ability
to establish interpersonal relationships and had learned to
constructively deal with his sexuality. The expert further pointed
out that the applicant had not abused previous relaxations of his
detention and had not shown aggressive or sexually deviating
behaviour in the course of his meanwhile 24 years of detention. He
therefore suggested that relaxations of his detention be reinstated
with a view to testing whether a conditional suspension of his life
sentence could be considered in the future.
- Consequently,
in 1995, the applicant was transferred to open prison facilities,
allowed to take up employment outside prison and to make his journeys
to and back from work without supervision. He was further granted
prison leave that he spent in an apartment rented by him for this
purpose.
- The
same psychiatric expert who had rendered the opinion in 1994
addressed the possibility of the applicant’s conditional
release on probation in a further opinion of 26 August 1996
commissioned by the Mainz Senior Public Prosecutor
(Oberstaatsanwalt). The expert noted that the applicant had
made further progress with a view to his social integration and that
his conduct during relaxations of his detention had been
unobjectionable. He therefore confirmed his previous finding
that the applicant’s criminal prognosis was rather positive. He
pointed out that, however, the applicant still lacked experience in
establishing and maintaining sexual relations. While the risk of
recidivism could be further reduced by accompanying therapeutic
treatment, it was impossible to assess the likelihood that the
applicant would commit further serious crimes if confronted with a
situation of conflict in a sexual context.
- In
a statement of 8 August 1996 the Limburg psychologist who had
attended to the applicant since 1970 (see § 17 above) expressed
the view that as a result of specific therapeutic measures
implemented since 1990 the applicant had gained in social competence
and made progress regarding a possible social integration. He had
learned to control his actions and therefore further relaxations of
his detention should be considered.
- By
a decision of 10 November 1997 the Koblenz Regional Court held
that the particular gravity of the applicant’s guilt had been
compensated by the execution of his sentence for meanwhile over 27
years and thus did no longer require the continued execution of his
life sentence. In line with the proposal of the public prosecution
authorities, the court, after having heard the applicant on
9 September 1997, nevertheless refused the latter’s first
request to suspend his detention on probation on the ground that
there remained a risk that he would commit similar offences if
released.
- The
applicant’s related appeal was dismissed by the Koblenz Court
of Appeal on 14 January 1998. The Court of Appeal noted that if,
as in the case at hand, the offence at issue qualified as murder, the
safety interest of the public was of particular importance. A release
on probation could not be considered if there remained an even remote
risk that the convict would commit further serious crimes if
released. While the findings in the numerous psychological and
psychiatric expert opinions established over the years had been to
some extent contradictory, they had nevertheless all confirmed that a
risk that the applicant would commit further serious crimes
threatening the life of others could not be excluded. The court
specified that the statement of the applicant’s long-time
therapist of 12 November 1990 (see § 17 above) which was at
variance with the experts’ findings did not lead to a different
conclusion since this therapist was lacking the required distance and
impartiality.
3. The proceedings
at issue
a. The decision of the Koblenz Regional Court
- On
11 August 1998 the applicant again requested that he be released
on probation and submitted that his continued detention for meanwhile
28 years violated his human dignity.
- On
8 June 1999 the Koblenz Regional Court commissioned an
additional expert opinion on the likelihood that the applicant would
commit further serious crimes if released. It was rendered by a
deputy medical director (Oberarzt) of the Mainz psychiatric
university clinic on 15 March 2000. This expert pointed out
that the applicant’s irreproachable behaviour during the
relaxations of his detention over several years constituted a
positive criterion for his criminal prognosis. He nevertheless shared
the view of previous experts that the applicant’s persevering
denial of the crimes prevented him from appreciating and analysing
the specific circumstances and motives which had led to the murders.
It was thus difficult to assess the remaining risk of recidivism and
it could not be excluded that the applicant still posed a threat to
society.
- By
a decision of 29 January 2002 the Koblenz Regional Court, after
hearing the said psychiatric expert as well as the applicant and
referring to written statements from the Mainz public prosecution
authorities as well as the Diez prison authorities, again ordered
that the execution of the applicant’s detention be continued.
In its decision-making the court took into account that the Diez
prison authorities had given a favourable opinion on the applicant’s
possible release on probation in view of the fact that he had never
abused relaxations of his detention which had been implemented for
meanwhile almost eight years. The Regional Court, relying in
particular on the assessment by the said psychiatric expert,
nevertheless held that the applicant’s criminal prognosis was
still uncertain. This assessment was further supported by the
resident psychologist at Diez prison. In a written statement of
13 November 2001 he had stated that the applicant’s lack
of insight into his deed did not even allow for a positive criminal
prognosis in the long term.
- The
applicant appealed the decision by written submissions of 21 February
and 8 March 2002. He maintained, inter alia, that
contrary to the court’s opinion the doubts as to his
dangerousness were merely theoretical and did not constitute a
sufficient basis for the continuing deprivation of his liberty for
meanwhile 32 years. The circumstances of the case further raised the
question whether the experts, when drawing up their opinions on the
applicant’s criminal prognosis, were bound by the statement and
assessment of facts as established in the Mainz Regional Court’s
judgment of 19 July 1972.
b. The decision of the Koblenz Court of Appeal
- On
22 April 2002 the Koblenz Court of Appeal, endorsing the
Regional Court’s reasoning, dismissed the appeal as
ill-founded.
- The
Court of Appeal held that, contrary to the applicant’s
submissions, it had to be assumed that the offences had been
committed as established in the first instance judgment of 19 July
1972. This finding was in line with the wording of Article 57 of the
Criminal Code (see relevant domestic law below) stipulating that in
their assessment whether a life sentence was to be suspended on
probation the courts, shall, inter alia, take into account the
circumstances of the convict’s crime. These circumstances of a
case could only be established in the proceedings leading to the
conviction. It was not the task of the court dealing with issues in
relation to the subsequent execution of the convict’s sentence
to reassess the facts. The only appropriate remedy for a convict
alleging that new evidence had occurred following his conviction
would be a request for a reopening of the proceedings.
- The
Court further noted that it followed from the experts’ opinions
that the likelihood that the applicant would commit similar offences
if released could not be assessed in a reliable way. Even the
opinions established in 1994 and 1996 by the expert who had given a
rather positive criminal prognosis for the applicant, based on his
unobtrusive conduct during the execution and relaxations of his
sentence, had concluded that it was unpredictable how the applicant
would react if confronted with a situation of conflict within a
sexual context. Subsequent psychological statements and opinions had
also come to the conclusion that a risk of his reoffending could not
be excluded even if the applicant was to be monitored closely. The
Court of Appeal therefore considered that the applicant was a
“ticking bomb” and that the risk that he would commit a
serious violent crime was not merely theoretical irrespective of his
irreproachable conduct during detention. While taking into account
the applicant’s increasing interest to be released in view of
his detention for meanwhile 32 years, the Court of Appeal concluded
that in view of the gravity of the offences committed, the
applicant’s denial of the deeds and the resulting doubts in
respect of a positive criminal prognosis, the safety interest of the
public still prevailed over the applicant’s interest to be
released on probation. The continued execution of his life
sentence was thus proportionate.
- On
24 May 2002 the applicant complained about a violation of his right
to be heard (Anhörungsrüge) and challenged the
presiding judge at the Court of Appeal for bias. He alleged in
particular, that the Court of Appeal had ignored his argument that
the facts as stated in the Mainz Regional Court’s judgment of
19 July 1972 were not binding on the psychological experts.
Furthermore, it had not addressed his concerns whether the indefinite
execution of a life sentence was in compliance with the German Basic
Law (Grundgesetz). His applications were rejected by the
Koblenz Court of Appeal on 8 July 2002 and 22 July 2002,
respectively.
c. The decision of the Federal Constitutional Court
- On
24 May 2002 the applicant lodged a constitutional complaint
against the decisions of the Koblenz Regional Court of 29 January
2002 and the Koblenz Court of Appeal dated 22 April 2002. On 2
September 2002, he extended his constitutional complaint to the
decisions of the Koblenz Court of Appeal dated 8 July 2002 and
22 July 2002.
- On
8 November 2006 the Federal Constitutional Court, by a leading
decision (file no. 2 BvR 796/02) running to some 79 pages, rejected
the applicant’s complaint as ill-founded to the extent he had
challenged the refusal of the domestic courts to suspend his
detention on probation.
- The
Federal Constitutional Court found that the execution of a life
sentence beyond the period warranted by the particular gravity of a
convict’s guilt on the ground that the latter still presented a
threat to society did not as such violate his or her constitutionally
guaranteed right to respect of human dignity or right to liberty.
However, the protection of human dignity and the principle of the
rule of law required that a detained person had a concrete and
realistically attainable chance to regain his freedom at some later
point in time. Such prospect of release was guaranteed by means of a
strict scrutiny by the domestic courts whether an ongoing detention
was still proportionate. The longer a detention lasted, the stricter
the scrutiny of whether it was still proportionate had to be. A
detainee’s ever increasing interest to be released in the
course of a lengthy detention on the one hand was restricted by the
State’s mandate to protect the rights of others and the safety
interest of the public on the other. Where criminal offences such as
murder were to be expected in the event of a potential recidivism,
the safety interest of the public required particular protection. A
release on probation could only be envisaged if the remaining risk
for the safety interest of the public was justifiable. However, even
in the event a convict had committed serious violent or sexual
crimes, a release on probation could not be refused by the domestic
courts simply on the ground that there existed a mere theoretical
risk of recidivism (which in view of the limited possibilities of any
kind of prognosis could in any event never be excluded). It rather
had to be based on concrete factual circumstances establishing that
such risk was unjustifiable having regard to the safety interest of
the public.
- The
Federal Constitutional Court further pointed out that a convict’s
interest in being released also had an impact on the procedural
requirements to be observed by the courts when deciding on a possible
suspension of a sentence of life imprisonment. In view of the
indefinite duration of a life sentence, domestic law provided for a
judicial examination of a request for a release on probation which
could be lodged by the public prosecution authorities as well as the
convict at any point in time. Furthermore, the conditions for a
possible release had to be assessed by the authorities at an early
stage in order to enable them to take appropriate measures to prepare
a convict’s possible release. In this connection relaxations of
detention were of particular importance since they offered the judge
a broader and sounder basis for an assessment of the detainee’s
criminal prognosis with respect to a life in liberty. When assessing
the likelihood that a convict would commit further serious crimes if
released, the courts were under an obligation to obtain the best
possible clarification of the circumstances of a case and had to base
their prognosis on a sufficiently substantiated and recent expert
opinion. Finally, any court decisions on the continuation of a
lengthy detention had to be carefully reasoned and disclose the basis
of the judge’s assessment. In the event the continued detention
was primarily justified by the safety interest of the public, it had
to be considered whether the particular burden of a long-lasting
deprivation of liberty could be countered by granting the convict
certain privileges in daily prison routine, thus allowing him to
retain some quality of life.
- Turning
to the particular circumstances of the case at hand, the Federal
Constitutional Court found that the impugned decisions of the Koblenz
Regional Court and Court of Appeal had complied with the
aforementioned constitutional requirements. The domestic courts had
struck a fair balance between the applicant’s right to be
released and the safety interest of the public. The Court of Appeal,
in its appeal decisions of 22 April and 22 July 2002, had
not only taken into consideration the considerable length of the
applicant’s detention of meanwhile 32 years but also his good
conduct. It had further made a thorough assessment of the various
expert opinions on the applicant’s criminal prognosis and
provided arguments why it shared the evaluation of the external
expert opinion of 2000 confirming that a risk of recidivism could not
be excluded. On the basis of the expert’s assessment the Court
of Appeal had concluded that such risk was not merely theoretical and
had demonstrated that under certain conditions the applicant’s
ability to control his actions was reduced to an extent that made it
possible that he would commit similar serious offences even if he was
to be closely monitored following a possible release. The Federal
Constitutional Court, while noting that a more convincing reasoning
of the courts’ decisions would have been desirable, conceded
that the lack of clarification of the specific circumstances leading
to the murders resulted from the applicant’s failure to reflect
on the crimes. Under these circumstances, the Court of Appeal’s
assessment that the likelihood of the applicant committing further
serious crimes such as murder was of a degree that the safety
interest of the public had to prevail over his interest to be
released, had nevertheless been reasonable.
- Finally,
the Federal Constitutional Court pointed out that in view of the fact
that no review of the applicant’s detention had occurred since
the impugned decision of 2002, the public prosecution authorities
were under an obligation to investigate ex officio why the
applicant had not submitted a related request.
- The
Federal Constitutional Court’s decision was served on the
applicant on 1 December 2006.
4. The parallel proceedings regarding the revocation of
relaxations of the applicant’s detention
- Following
the Koblenz Court of Appeal’s decision of 22 April 2002 in
the proceedings at issue, the Diez prison authorities ordered in June
2002 that the applicant’s cell and his apartment outside prison
be searched. There had further been evidence that in the months
of April and May 2002 the applicant had extended his journeys to and
back from work on several occasions. On the occasion of the search of
his apartment the Diez prison authorities seized, inter alia,
binoculars, numerous magazines, photographs and video cassettes of a
pornographic nature, ropes and adhesive tapes, as well as women’s
underwear.
- Consequently,
the Diez prison authorities ordered that all relaxations of the
applicant’s detention be removed on the ground that the outcome
of the search had shown that there was a risk that he would abuse
releases from prison in order to commit further serious crimes.
- The
resident psychologist at Diez prison, in a statement of 4 July 2002,
pointed out that the applicant had stood the test of previous
relaxations of detention and that the removal of his privileges
implied the loss of his apartment, employment, personal environment
outside prison and of all existing social perspectives. However,
while the fact that the applicant had abused his journeys to work and
the materials found in his flat did not constitute a clear indication
for an acute risk of recidivism, the recent developments had made a
reliable positive prognosis for the applicant even more difficult.
- On
10 February 2003, the Koblenz Regional Court rejected the
applicant’s request to have the relaxations of his detention
reinstated. The Regional Court found that the prison
authorities’ decision to remove the applicant’s
privileges had been justified for the protection of the safety
interest of the public. Considering the expert opinions rendered in
the course of the applicant’s lengthy detention and taking into
account that a significant amount of pornographic material had been
seized in the applicant’s flat, the court was of the opinion
that there remained a considerable risk that the applicant may
reoffend.
- The
applicant’s appeal against the Regional Court’s decision
was rejected by the Koblenz Court of Appeal on 10 June 2003 as
inadmissible. On 11 July 2003 the applicant lodged a constitutional
complaint. No further information was submitted to the Court in
relation to the proceedings before the Federal Constitutional Court
in this respect.
5. Subsequent developments
- A
subsequent request for reinstatement of relaxations of the
applicant’s detention of 17 January 2007 was rejected by
the Diez prison authorities on 16 January 2008. The prison
authorities conceded that the applicant’s conduct since the
removal of previous relaxations of his detention in June 2002 had
been irreproachable. He had worked in the prison’s locksmith’s
shop and maintained extensive contacts with the outside world like,
inter alia, with his former employer and colleagues as well as
his former therapist. The fact that he had also stood the test of
several years of relaxations of his detention prior to 2002, the long
duration of his imprisonment as well as his advanced age also were
arguments in favour of granting him the right to unsupervised
releases from prison. However, the applicant’s unaltered denial
of his deeds and the fact that he trivialised his sexual deviation
prevented any perspective of therapeutic progress. In this context
the prison authorities also referred to an expert opinion obtained on
31 October 2005 stating that in view of the high remaining risk
of recidivism relaxations of the applicant’s detention were
only justifiable if combined with continuous and close monitoring.
Accordingly, the prison authorities concluded that the protection of
the rights at stake outweighed the applicant’s interest in
social reintegration.
Ever
since the applicant was only granted occasional supervised releases
from prison.
- By
written submissions of 18 December 2009 the applicant again
requested that the remainder of his life sentence be suspended on
probation and asked the Koblenz Regional Court to obtain an expert
opinion on the likelihood that he would commit further serious
offences if released. In a statement of 29 March 2010, the Diez
prison authorities opposed the applicant’s release on probation
since he still did not show any insight into the crimes.
- By
a decision of 14 May 2010 the Regional Court commissioned the
expert opinion and appointed an expert proposed by the applicant.
The expert opinion was rendered on 22 September 2010. The
expert pointed out that leading forensic psychiatrists had
established that the risk of recidivism following release did not
depend on the offender’s insight into the offence committed.
The expert therefore concluded that the fact that the applicant
insisted on his innocence could not have a negative impact on his
legal prognosis. However, there was nothing to establish that the
applicant’s character had matured since he had committed the
crimes or that any therapeutic progress had been made. It therefore
remained impossible to assess the potential risk of recidivism, in
particular in the long term, and it was unlikely that future expert
opinions would come to a different assessment. The expert held that
relaxations of the applicant’s detention, such as unsupervised
releases from prison could be reinstated with a view to preparing the
applicant’s placement in supervised accommodation (Betreutes
Wohnen). Even if integrated in such supervised accommodation it
would be necessary to closely monitor the applicant and provide
counselling as regards his sexual behaviour.
- On
15 November 2010 the Koblenz Regional Court, after hearing the
applicant as well as the expert and having regard to the prison
authorities’ statement of 29 March 2010, again rejected the
applicant’s request that his life sentence be suspended on
probation and held that a further similar request would be
inadmissible if made within a period of two years.
- The
Regional Court, referring to the principles set out in the Federal
Constitutional Court’s decision of 8 November 2006 with
respect to the proportionality of the continued execution of a life
sentence, concluded that the applicant’s continued detention
was still justified. In its assessment the Regional Court referred in
detail to the various expert opinions rendered over the years, in
particular the expert opinion of 22 September 2010. While taking
into account the significant duration of the applicant’s
detention for meanwhile more than 40 years and his good conduct on
the one hand, the court also considered the particular brutality
characterising the crimes and the fact that the applicant did not
show any insight into the deeds and his sexual deviation. The court
nevertheless pointed out that the principle of proportionality
required granting the applicant an opportunity to show that he was
able to stand the test of relaxations of his detention and to improve
his criminal prognosis. It therefore supported the expert’s
proposal that closely monitored relaxations of the applicant’s
detention be granted and held that prior to a possible placement of
the applicant in supervised accommodation he would have to prove
during a period of two years that he was capable of dealing with
situations of conflict in a sexual context outside prison with a view
to preparing a possible release on probation.
- It
appears that since 26 July 2011 the applicant has been granted the
right to unsupervised releases from prison twice a week.
B. Relevant domestic law and practice
- Article
1 § 1 of the German Basic Law (Grundgesetz) provides that
human dignity shall be inviolable and that to respect and protect it
shall be the duty of all State authority. Article 2 § 2
stipulates that the freedom of a person shall be inviolable and may
be interfered with only on a statutory basis.
- Pursuant
to Article 211 of the Criminal Code (Strafgesetzbuch), the
intentional killing of a person is to be classified as murder if
certain aggravating elements are present. A murderer under this
provision is any person who kills another person for pleasure, for
sexual gratification, out of greed or otherwise base motives, by
stealth or cruelly or by means that pose a danger to the public or in
order to facilitate or to cover up another offence.
- Murder is punishable by life imprisonment. A
declaration by the sentencing court that the defendant’s guilt
is of a particular gravity may, inter alia, have a bearing on
a subsequent decision regarding suspension of the latter part of the
defendant’s prison sentence on probation.
- Article
57(a) § 1 in conjunction with Article 57 of the Criminal Code
stipulates that the court is to suspend the remainder of a life
sentence on probation if the convicted person has served fifteen
years of his sentence, the particular gravity of the defendant’s
guilt does not warrant the continued execution of the sentence and
provided that a suspension on probation can be justified while
considering the safety interest of the public. In its assessment
whether probation shall be ordered the courts shall take into account
the personality of the convicted person, his past life, the
circumstances of his crime, the extent to which the legal interest
would be threatened in the event of recidivism, the conduct of the
convicted person while serving his sentence, his living conditions
and the expected effects the suspension of the sentence could have on
him.
- Following
expiry of the minimum term of fifteen years, the courts decide on the
suspension of the remainder of a convict’s life sentence ex
officio. Furthermore they are under an obligation to decide on
related requests by the applicant, his counsel or the prosecution
authorities which may be lodged at any time in the course of an
ongoing detention.
- Article 454 § 1 of the Code of Criminal Procedure
(Strafprozessordnung) provides that the decision whether
execution of the remainder of a prison sentence is to be suspended on
probation (sections 57 to 58 of the Criminal Code), as well as the
decision that prior to expiry of a certain time limit an application
by the convicted person to this effect shall be inadmissible, shall
be given by court order. The public prosecution office, the convicted
person and the penal institution shall be heard. According to
paragraph 2 of this provision the court shall obtain the opinion of
an expert concerning the convicted person if it considers suspending
execution of the remainder of a sentence of life imprisonment. The
opinion shall, in particular, express a view as to whether there
remains a risk that the convicted person is still posing the danger
apparent from the offence of which he was convicted.
COMPLAINTS
- The
applicant complained under Article 5 § 4 and alternatively under
Articles 5 § 1 (a) and 6 § 1, of the
Convention that the proceedings at issue in connection with the
judicial review of his continued detention had been unfair.
- He
alleged that for the periods following the Koblenz Regional Court’s
judgment of 10 November 1997 stating that the particular gravity
of his guilt did no longer require the continued execution of his
life sentence, the domestic courts had based their decision that his
detention be continued on a purely theoretical threat he allegedly
still presented to society. In their assessment of such potential
risk the domestic courts as well as the majority of the psychiatric
and other experts involved had consistently referred to the danger
apparent from the offences as established in the Mainz Regional
Court’s judgment of 19 July 1972. They had not
sufficiently taken into account subsequent developments and the
relevant information available at the time of their decisions on the
review of the applicant’s detention.
- Since
the courts deciding on the continuation of the applicant’s
detention assumed that the facts as established in the first instance
judgment were binding, they had not considered subsequent expert
opinions doubting that the applicant had committed the crimes. For
the same reason the domestic courts had not taken into account the
deviating description of the order in which the crimes had been
committed as stated in the bill of indictment of 30 March 1972
even though such order could have an impact on the applicant’s
criminal prognosis. The question whether the applicant had killed the
mother in order to pursue his plan to have sex with the daughter or
in order to cover up the previous killing of the daughter was
decisive for the assessment of his potential dangerousness.
- The
applicant finally complained that the fact that the domestic courts
had repeatedly held that a positive criminal prognosis for him could
not be established on the ground that he denied having committed the
murders constituted a violation of his right not to incriminate
himself.
THE LAW
A. The alleged violation of Article 5 § 1 of the
Convention
- The
applicant complained that the continuing execution of his life
sentence since 10 November 1997 violated his right to liberty as
provided in Article 5 § 1 of the Convention, which, in so
far as relevant, reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court;...”
- The
Court observes at the outset that while the applicant has challenged
the conformity of life imprisonment as such with the fundamental
rights guaranteed under the German Basic Law within the scope of his
complaint with the Federal Constitutional Court, its compliance with
the Convention has not formed part of the present application.
His allegations before the Court suggest that his detention
based on considerations of prevention had become arbitrary and did no
longer constitute a lawful detention of a person after conviction by
a competent court in the meaning of Article 5 § 1 (a) of the
Convention.
- The
Court further notes that the domestic proceedings in respect of which
the applicant lodged his application relate to his continued
detention ordered by the Koblenz Regional Court’s decision of
29 January 2002 as confirmed on appeal. The present application
therefore concerns his continued detention as a result of these
proceedings.
- The
Court reiterates that where the “lawfulness” of detention
is in issue, the Convention refers essentially to national law and
lays down the obligation to conform to the substantive and procedural
rules thereof. In addition, any deprivation of liberty should be
in keeping with the purpose of Article 5, namely to protect the
individual from arbitrariness (see, among many other authorities,
Saadi v. the United Kingdom [GC], no. 13229/03, § 67,
ECHR 2008).
- The
Court observes that the applicant was convicted of murder by the
competent Mainz Regional Court by a judgment of 19 July 1972 and
sentenced to life imprisonment in accordance with Article 211 of the
Criminal Code. He was thus detained in accordance with domestic law.
- The
subsequent decisions of 13 November 1984, 10 November 1997
and 29 January 2002 ordering his continued detention also had a
basis in national law, namely section 57 (a) § 1 in conjunction
with section 57 § 1 of the Criminal Code. In each case the
Regional Court referred to the outcome of psychological or
psychiatric expert opinions on the question whether the applicant was
still posing a danger to society and heard the applicant as well as
the competent representatives of the public prosecution and prison
authorities. In their assessment whether probation should be ordered
the Koblenz Regional Court and Court of Appeal made reference to the
criteria established under Section 57 § 1 of the Criminal Code
such as, in particular, the personality of the applicant, his past
life, the circumstances of his crime, his conduct while serving his
sentence and the extent to which the legal interest would be
threatened in the event of a possible recidivism.
- The
Court is therefore satisfied that at the time of the 2002 proceedings
at issue, the applicant’s continued detention was in conformity
with the procedural and substantive rules of domestic law.
- In
determining whether the applicant’s detention has been in
keeping with the purpose of Article 5 § 1 of protecting him from
arbitrariness, the Court is called upon to determine whether there
was a sufficient causal connection between the conviction and the
deprivation of liberty at issue.
The
Court reiterates in this connection that, the word ‘after’
in sub-paragraph (a) does not simply mean that the ‘detention’
must follow the ‘conviction’ in point of time: in
addition, the ‘detention’ must result from, follow and
depend upon or occur by virtue of the ‘conviction’.
However, with the passage of time, the link between the initial
conviction and a further deprivation of liberty gradually becomes
less strong. The causal link required by sub-paragraph (a) might
eventually be broken if a position were reached in which a decision
not to release or to re-detain was based on grounds that were
inconsistent with the objectives of the initial decision (by a
sentencing court) or on an assessment that was unreasonable in terms
of these objectives. In those circumstances, a detention that was
lawful at the outset would be transformed into a deprivation of
liberty that was arbitrary and, hence, incompatible with Article 5
(see Van Droogenbroeck v. Belgium, 24 June 1982, §§
35 and 40, Series A no. 50).
- Turning
to the circumstances of the case at hand, the Court notes that life
imprisonment was a mandatory sentence imposed on the applicant as a
consequence of his conviction of murder in accordance with Article
211 of the Criminal Code. While a subsequent finding by the courts
responsible for the execution of the life sentence that the
particular gravity of a convict’s guilt does no longer warrant
his or her continued execution constitutes a condition for a possible
suspension of the life sentence on probation in accordance with
Article 57(a) § 1 in conjunction with Article 57 of the Criminal
Code, it nevertheless does not confer a right to be released on
probation. In fact, the conditional suspension of a life sentence
requires in addition that it can be justified while having regard to
the safety interest of the public, a requirement that according to
the Koblenz Regional Court’s reasoning in its decisions of
10 November 1997 as well as the proceedings at issue in 2002,
had not been met in the instant case.
- The
Court therefore considers that the Koblenz Regional Court’s
finding in its decision of 10 November 1997 that it was no
longer the particular gravity of the applicant’s guilt that
warranted his continued detention but rather the danger he posed to
society did, as such, not affect the sentence of life imprisonment or
break the causal connection between the conviction and the
applicant’s continued detention (compare Kafkaris v. Cyprus
[GC], no. 21906/04, § 120, ECHR 2008 ...).
- The
Court is further satisfied that the reasons provided by the courts
for not suspending the applicant’s life sentence on probation
were consistent with the objectives of the sentencing court’s
judgment which comprised, in addition to the punitive element
warranted in view of the particular gravity of the crime, the
protection of the public from similar violent offences. As regards
the continued execution of a life sentence the Court has held that
“[o]nce the punishment element of the sentence ... has been
satisfied, the grounds for the continued detention ... must be
considerations of risk and dangerousness” although such
considerations must be “associated with the objectives of the
original sentence of murder” (see Stafford v. the United
Kingdom [GC], no. 46295/99, § 80). The Court
reiterates in this context that States have a duty under the
Convention to take measures to protect the public from violent crime
(see V. v. the United Kingdom [GC], no. 24888/94,
ECHR 1999-IX, § 98).
- While
noting that the element of dangerousness is susceptible by its very
nature to change with the passage of time (see Weeks v. the United
Kingdom, cited above, § 46), the Court is of the
opinion that the assessment underlying the domestic courts’
decisions to continue the execution of the applicant’s
detention at the time of the proceedings at issue in 2002 was not
unreasonable in terms of its objective to protect public safety.
- When
examining whether the applicant still posed a danger to the public
warranting the continuation of his life sentence, the domestic courts
not only paid particular attention to the considerable length of the
applicant’s detention of then 32 years but also to the Diez
prison authorities’ favourable opinion on a conditional release
of the applicant in view of his irreproachable conduct in prison as
well as on the occasion of his unsupervised releases from prison. The
Court refers in this context to the Federal Constitutional Court’s
decision of 8 November 2006 in the present case emphasising the
particular importance of relaxations of detention with a view to
providing the judge with a broader and sounder basis for an
assessment of a detainee’s criminal prognosis with respect to a
life in liberty.
- However, the domestic courts, irrespective of the
applicant’s good conduct, considered that milder means than his
continued detention could not be considered. In their decision-making
they referred to the various expert opinions on the applicant’s
criminal prognosis and relied in particular on the external
psychiatric expert opinion of 15 March 2000 as well as the
statement of the resident psychologist at the Diez prison of
13 November 2001. On that basis the courts concluded that
the applicant still posed a danger to the general public given in
particular the lack of any self-analysis in relation to the motives
for the crimes which made a reliable criminal prognosis impossible.
- The
Court further notes that while the expert opinions on which the
domestic courts relied differed to some extent in their assessment
whether the applicant should be granted relaxations of his detention,
it was nevertheless common ground among the experts that it was
impossible to exclude with any certainty that the applicant might
represent a danger, in particular when confronted with situations of
conflict in a sexual context. As regards the fact that the
domestic courts did not share the conflicting conclusions of the
Limburg psychotherapist who had attended to the applicant
continuously since July 1970 (see § 17 above), the Court
reiterates that national authorities have a certain margin of
appreciation regarding the merits of clinical diagnoses, since it is
in the first place for them to assess the evidence in a particular
case: the Court’s task is to review under the Convention the
decisions of those authorities (see Winterwerp v. the Netherlands,
24 October 1979, § 40, Series A no. 33). The Court observes in
this connection that the opinion of this expert was isolated and was
at variance with opinions established in preceding years and has also
not been supported by subsequent expert opinions.
- The
Court further considers that, as opposed to the applicant’s
allegations, the experts’ opinions and the resulting prognoses
by the domestic courts were not exclusively based on his denial of
the crimes. They rather relied on the fact that due to the resulting
lack of self-analysis in relation to the acts of which the applicant
had been found guilty, there was nothing to establish that his
personality structure and his capacity to deal with his sexual
deviation and aggressiveness had changed. The Court finds that theses
considerations were not immaterial to the question of the applicant’s
dangerousness. The Court also observes that, contrary to the
applicant’s submissions, the experts as well as the domestic
courts took into account the developments following the applicant’s
conviction in 1972 as well as the relevant information available at
the time their opinions and decisions within the scope of the
consecutive reviews of the applicant’s detention were rendered.
- In view of the above findings, the Court is satisfied
that there remained a sufficient causal connection between the
applicant’s criminal conviction in 1972 and the continued
execution of his life sentence for the purposes of sub-paragraph (a)
of Article 5 § 1. The Court further finds that there is nothing
to establish that the domestic courts’ decisions in the
proceedings at issue were arbitrary on any other ground. It
acknowledges in this respect that the criteria applied by the Federal
Constitutional Court when examining the proportionality of the
continuing execution of a life sentence, as set out in its decision
of 8 November 2006 in the case at hand, reflect the related
principles developed in the Court’s case-law.
- Having
regard to the above considerations, the Court, while noting that the
proportionality of a continuing detention should be subject to
particular scrutiny the longer the detention lasts, is of the
opinion that there is nothing to establish that at the time of the
proceedings at issue the Koblenz Regional Court in its decision of
29 January 2002, as confirmed by the respective decisions of the
Koblenz Court of Appeal of 22 April 2002 and the Federal
Constitutional Court of 8 November 2006, had not struck a fair
balance between the applicant’s interest to be released and the
safety interest of the public.
Consequently,
the applicant’s deprivation of liberty was justified under
Article 5 § 1 (a) of the Convention.
- The
Court therefore holds that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
B. The remainder of the applicant’s complaints
- The
applicant further submitted that the proceedings at issue had been
unfair in breach of Article 5 § 4 as well as Article 6 § 1
of the Convention. The Court finds that this complaint falls to be
examined under Article 5 § 4 which provides:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
- The
Court notes that the issues raised by the applicant under this head
have already been examined in the context of his complaint under
Article 5 § 1 and concludes that the applicant’s
complaint under Article 5 § 4 does not give rise
to any separate issue. In particular, the Court is satisfied that the
applicant, who had been represented by counsel throughout the
proceedings, had had the opportunity to present his own case and to
challenge the expert evidence adduced in support of his detention.
- It
follows that this part of the applicant’s complaint is also
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the
Court unanimously
Declares the application inadmissible.
Stephen Phillips Dean Spielmann
Deputy Registrar President
