GLIEN v. GERMANY - 7345/12 - Chamber Judgment [2013] ECHR 1206 (28 November 2013)

In the case of Glien v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ann Power-Forde,
          Ganna Yudkivska,
          Helena Jäderblom,
          Aleš Pejchal, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 5 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 7345/12) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Christian Glien (“the applicant”), on 30 January 2012.

The applicant, who had been granted legal aid, was represented by Mr D. Walker, a lawyer practising in Betzdorf. The German Government (“the Government”) were represented by one of their Agents, Ms K. Behr, Regierungsdirektorin, of the Federal Ministry of Justice.

The applicant alleged that his preventive detention, which had been extended retrospectively beyond a period of ten years, the maximum for such detention under the legal provisions applicable at the time of his offences and conviction, violated Article 5 § 1 and Article 7 § 1 of the Convention.

On 14 June 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1947 and is currently detained in Diez Prison.

A. The applicant’s previous convictions and the order for his preventive detention and execution thereof

Following several convictions mainly of property offences, the applicant was found guilty by the Frankfurt am Main District Court on 16 February 1984, in particular, of sexual abuse of children and dissemination of pornographic documents and sentenced to ten months’ imprisonment. He was notably found to have shown pornographic films to children aged twelve to sixteen.

On 17 December 1997 the Hanau Regional Court convicted the applicant of eleven counts of sexual abuse of children, committed between July 1986 and December 1996. It sentenced him to four years’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraph 34 below).

The Regional Court found that the applicant had partly masturbated boys aged six to thirteen and had partly incited them to commit acts of a sexual or masochist nature on him in his apartment. He had recorded the acts on video and shown them to other minors. The applicant, who had been diagnosed by psychiatric expert R. with a sexual deviation with paedophile and masochist elements which was not so severe as to be pathological, had acted with full criminal responsibility.

The Regional Court further considered that the applicant’s preventive detention was necessary. He had a propensity to commit further similar offences, which he considered as harmless and not necessitating punishment, by which the children concerned could suffer serious psychological damage.

On 27 October 2001 the applicant, having fully served his prison sentence, was placed for the first time in preventive detention, executed initially in Werl Prison and since 19 January 2004 in Diez Prison.

The continuation of the applicant’s preventive detention in prison was ordered by the courts dealing with the execution of sentences at regular intervals. It was ordered, in particular, by the Koblenz Regional Court on 3 February 2011, based on a report dated 1 December 2010 by a psychiatric expert, V.

B. The proceedings at issue

1. The decision of the Koblenz Regional Court

On 9 and 23 May 2011 the applicant, referring to the Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 (see paragraphs 42-48 below), requested the Koblenz Regional Court to order his release immediately.

On 16 September 2011 the Koblenz Regional Court, having heard the applicant in person, his counsel and an external psychiatric expert, V., ordered the applicant’s preventive detention to continue (Article 67 d § 3 of the Criminal Code; see paragraph 37 below).

The Regional Court found that the applicant would have served ten years in his first preventive detention by 26 October 2011. This had been the maximum duration for such detention at the time of the applicant’s offences and conviction under Article 67 § 3 of the Criminal Code in the version then in force, which had, however, been abolished in January 1998 (see paragraph 36 below).

The Regional Court further noted that the stricter standards set by the Federal Constitutional Court in its leading judgment of 4 May 2011 for a continuation of preventive detention beyond that time-limit (see paragraph 44 below) had been met in the applicant’s case. It was still highly likely that the applicant, owing to specific circumstances relating to his conduct, would commit the most serious offences against the sexual self-determination of children, by which the victims would severely be harmed mentally and physically. Despite the fact that he had been in preventive detention for almost ten years, it was very likely that he would commit further serious acts of sexual abuse of children.

In this respect, the Regional Court endorsed the findings made in the report submitted by psychiatric expert V. on 1 December 2010, following an examination of the applicant, and his additional report dated 2 August 2011, drawn up on the basis of the case-file as the applicant had refused another examination. In his reports, the expert, having regard to the common instruments for the classification of diseases (inter alia, the ICD-10 and the psychopathy checklist), had considered the applicant as dangerous for being a psychopath and as suffering from paedophilia towards boys and from a dissocial personality, which could not be considered as pathological. His dissocial personality was characterised by continuous irresponsibility and disregard for social rules and obligations, his inability to maintain long-term relationships, his inability to feel guilty and to learn from experience, as well as his tendency to blame others and to superficially rationalise his own behaviour.

Expert V. had further noted that the therapy offered to the applicant in prison had been discontinued in 2004 after one year of treatment as the applicant kept justifying his offences, denied any paedophile behaviour and lacked empathy. Despite his age, there was therefore a medium to high probability that the applicant would reoffend. Despite the fact that the applicant had not used physical violence when committing his offences, there had been body contacts and sexual violence in that he had used children to satisfy his sexual desires. A therapy of the applicant did not appear possible in view of his attitude. It was therefore still highly likely that the applicant would commit further serious sexual offences if released.

The Regional Court further considered that, in accordance with the requirements set out in the Federal Constitutional Court’s judgment of 4 May 2011, the applicant suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act (see paragraph 39 below). That mental disorder did not have to diminish the applicant’s criminal responsibility. Psychiatric expert V. had explained in his additional report that the applicant suffered from paedophilia towards boys, which was a sexual deviation, and a dissocial personality. These were not pathological, but were mental disorders for the purposes of the Therapy Detention Act, which had been phrased by reference to Article 5 § 1 (e) of the Convention. The applicant’s dangerousness was a result of these mental disorders.

Moreover, as all attempts for a therapy had been fruitless and as there was a high risk that the applicant would commit serious sexual offences against children, the applicant’s continued preventive detention was also proportionate.

2. The decision of the Koblenz Court of Appeal

On 5 December 2011 the Koblenz Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed that the paedophilia the applicant had been diagnosed with, against the background of a dissocial personality, had to be classified as a mental disorder for the purposes of Article 1 § 1 of the Therapy Detention Act. As the applicant still considered the acts he had been convicted of to be punishable, but not harmful for the children concerned and claimed that any treatment was therefore unnecessary, it was almost certain that he would commit further similar offences if released. There was no high risk that the applicant would commit violent offences against children as he had not used violence against his victims in the past. However, it was highly likely that he would commit acts such as masturbation involving children and recording of pornographic videos of children, which had to be classified as most serious sexual offences as they could cause particularly serious damage to the mental development of children.

3. The decision of the Federal Constitutional Court

On 10 December 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed, in particular, that his continued preventive detention beyond the ten-year maximum period applicable at the time of his offences was disproportionate and had breached his right to liberty and the prohibition of retrospective punishment as protected by the Basic Law and by Articles 5 § 1 and 7 § 1 of the Convention. He referred to this Court’s judgment of 17 December 2009 in the case of M. v. Germany (no. 19359/04, ECHR 2009) and to the Federal Constitutional Court’s leading judgment of 4 May 2011 on preventive detention (see paragraphs 42-48 below) to support his view.

On 19 January 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2754/11).

C. Subsequent developments

On 26 April 2012 the Koblenz Regional Court again ordered the applicant’s preventive detention to continue. It found that there had not been any changes in the applicant’s attitude towards his offences and considered that the requirements for the applicant’s further preventive detention as set out in the Koblenz Court of Appeal’s decision dated 5 December 2011 were still met. On 21 June 2012 the Koblenz Court of Appeal dismissed the applicant’s appeal against that decision. On 4 October 2012 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1696/12).

On 25 January 2013 the Koblenz Regional Court ordered another time that the applicant’s preventive detention was to continue as the conditions therefor, as set out in its previous decisions, were still met. On 8 March 2013 the Koblenz Court of Appeal dismissed the applicant’s appeal.

D. The conditions of the applicant’s detention during the execution of the preventive detention order

Since January 2004 the applicant is detained in a separate wing of Diez Prison for persons in preventive detention.

In 2004 the applicant underwent a therapy for sexual offenders in prison. That therapy was discontinued in 2005 following conflicts with the psychologist as the applicant had not changed his attitude towards his offences.

On 17 February 2005 the Koblenz Regional Court found that the applicant rejected any offers for treatment. On 14 May 2007 it confirmed that the applicant had not made any attempts whatsoever to confront himself with his criminal conduct.

Following signs of some positive changes in his personality following a number of meetings with the prison’s social service, the applicant was permitted to leave the prison for one to two days under the supervision of the prison staff in May and September 2011 and in February 2012. However, he discontinued the meetings when it became clear that he would not be released after having spent ten years in preventive detention.

According to the findings of the Koblenz Regional Court in the proceedings at issue, the applicant was not currently undergoing any therapy in Diez Prison as he considered himself not to be in need of treatment. He has been meeting and discussing with a social worker in prison once in a fortnight.

At present, the prison’s psychological and social services have regular conversations with the applicant in order to attempt to motivate him to undergo further treatment.

On 7 June 2013 the applicant was transferred to a new building which had been erected on the premises of Diez Prison in order to comply with the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment. In that building detainees are, in particular, provided with rooms measuring 18 m² and large spaces for indoor and outdoor leisure activities and have access to staff members of the psychiatric, psychological and social services.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 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 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 or shall be terminated. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time-limit is two years (paragraph 2 of Article 67e).

Under Article 67d § 1 of the Criminal Code, in the 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, 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. Termination shall automatically entail supervision of the offender’s conduct. 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 detention of mentally ill persons

The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement - without any maximum duration - in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.

Furthermore, on 1 January 2011, following the Court’s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Therapy Detention Act - Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter) entered into force. Under sections 1 § 1 and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be necessary for the protection of the public.

Under section 2 of the Therapy Detention Act, establishments suitable for therapy detention are only institutions which, in particular, can guarantee, by their medical and therapeutic offers, an adequate treatment of the mental disorder of the person concerned on the basis of an individualised plan for treatment and aimed at keeping the therapy detention to a minimum. Furthermore, the institutions concerned must allow detention to be executed in the least burdensome manner possible for the detainee, having regard to therapeutic aspects and to the interests of public security.

D. 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 person against whom preventive detention was ordered to a psychiatric hospital or to a detoxification facility (see Article 64 of the Criminal Code) if the person’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 person in a psychiatric hospital or a detoxification facility (Article 67a § 3).

E. Recent case-law of the Federal Constitutional Court

1. The Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011

On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.

The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.

The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged retrospectively, or ordered retrospectively under Article 66b § 2 of the Criminal Code, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.

In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung; ibid., § 89). It stressed that, in line with that openness of the Constitution to public international law, it attempted to avoid breaches of the Convention in the interpretation of the Constitution (ibid., §§ 82 and 89).

In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).

The Federal Constitutional Court confirmed its constant case-law that the absolute ban on the retrospective application of criminal law under Article 103 § 2 of the Basic Law did not cover preventive detention. The latter was a measure of correction and prevention, which was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender (see §§ 100-101 and 141-142 of the Federal Constitutional Court’s judgment). The Federal Constitutional Court noted that the European Court of Human Rights had considered preventive detention to be a “penalty” within the meaning of Article 7 § 1 of the Convention (ibid., §§ 102, 140). It considered that it was not necessary schematically to align the meaning of the constitutional notion of “penalty” to that under the Convention. Recourse should rather be had to the valuations (Wertungen) under the Convention in a result-oriented manner in order to prevent breaches of public international law (ibid., §§ 91 and 141 ss.).

Having regard to the constitutional protection of legitimate expectations in a State governed by the rule of law and the valuations of Article 5 and Article 7 of the Convention, the prolongation of the complainants’ preventive detention beyond the former ten-year maximum period, in particular, was only constitutional in practice if, inter alia, the requirements of Article 5 § 1 (e) were met (ibid., §§ 143 and 151-156). The Federal Constitutional Court expressly referred in that context to the case-law of the European Court of Human Rights according to which the detention of a person as a mental health patient would only be lawful for the purposes of Article 5 § 1 (e) of the Convention if effected in a hospital, clinic or other appropriate institution (ibid., § 155).

2. The decision of 15 September 2011

In a decision of 15 September 2011 (file no. 2 BvR 1516/11), the Federal Constitutional Court, referring to its judgment of 4 May 2011 (cited above), reiterated that a prolongation of a person’s preventive detention beyond the former ten-year time-limit applicable at the time of his conviction was only possible if the requirements of Article 5 § 1 (e) of the Convention were met.

The Federal Constitutional Court further clarified that the notion of persons “of unsound mind” in Article 5 § 1 (e) of the Convention had been taken up by the legislator in section 1 § 1 of the Therapy Detention Act. In that Act, the legislator had created a new category of “mental disorder” which did not require that the disorder was such as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code. Specific disorders in a person’s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act. This notion therefore was not limited to mental illnesses which could be treated clinically, but extended also, in particular, to dissocial personality disorders.

3. The decision of 11 July 2013 concerning the compatibility with the Basic Law of section 1 § 1 of the Therapy Detention Act

By a decision dated 11 July 2013 the Federal Constitutional Court found that section 1 § 1 of the Therapy Detention Act (see paragraph 39 above) was compatible with the Basic Law on the condition that it was interpreted in the following restrictive manner (file no. 2 BvR 2302/11 and 2 BvR 1279/12). Detention or its prolongation under that Act could only be ordered if there was a difference between such detention and detention for serving a term of imprisonment. Furthermore, there must be a high risk that the persons concerned, owing to specific circumstances relating to their person or their conduct, would commit the most serious crimes of violence or sexual offences. In addition, the requirements of Article 5 § 1 (e) of the Convention had to be met. The principles developed in respect of preventive detention which had been ordered or prolonged retrospectively (see paragraph 44 above) thus equally applied to detention under the Therapy Detention Act.

The Federal Constitutional Court reiterated in that context that the notion of “mental disorder” in section 1 § 1 of the Therapy Detention Act, having regard to the standards flowing from Article 5 § 1 (e), did not require that the disorder was so serious as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code. It further referred to the Court’s case-law relating to Article 5 § 1 (e) (in particular, to Kronfeldner v. Germany, no. 21906/09, 19 January 2012; and B v. Germany, no. 61272/09, 19 April 2012) and found that the detention of a person for being “of unsound mind” could be justified provided that the detention was effected in an appropriate psychiatric institution, which, in turn, necessitated a corresponding intensity of the mental disorder.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

The applicant complained that his disproportionately long preventive detention, and in particular his detention beyond the period of ten years, which had been the maximum for such detention under the legal provisions applicable at the time of his offences and conviction, had breached his right to liberty as provided in Article 5 § 1 of the Convention. That provision 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;

...

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...”

The Government contested that argument.

A. Admissibility

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

The applicant argued that his preventive detention had breached Article 5 § 1 of the Convention. He referred to the Court’s findings in the case of M. v. Germany (cited above) and stressed that the facts of that and of his case were comparable. References to efforts made by the Government and the legislator to establish a difference between the execution of preventive detention and that of prison sentences in the future could not undo the Convention violations suffered by him.

In the applicant’s submission, his preventive detention from 26 October 2011 onwards was not justified under any of the sub-paragraphs (a) to (f) of Article 5 § 1. In particular, it did not meet the requirements of sub-paragraph (a) of Article 5 § 1. Following the expiry of the ten-year maximum duration for preventive detention under Article 67d §§ 1 and 3 of the Criminal Code in the version in force at the time of his conviction (see paragraph 36 above), there was no longer a sufficient causal connection between his conviction in 1997 and his continued preventive detention.

The applicant further took the view that his preventive detention had not been justified under sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind” either. He submitted that following the Court’s judgment in the case of M. v. Germany (cited above), difficult detainees were now “reclassified” as being persons of unsound mind in order to allow their detention to be prolonged beyond the former ten-year maximum duration. His continuing preventive detention was no longer proportionate. He submitted that there was no very high risk that he would commit the most serious violent or sexual offences if released. The fact alone that he had not completed a therapy was insufficient to prove this. The domestic courts had only considered that there was a medium to high risk that he would commit further sexual offences if released. Moreover, he was ready to undergo a therapy and to take medication once released from prison and to comply with further orders such as to stay away from schools etc. Furthermore, he was of advanced age and in a poor state of health. His preventive detention therefore had to be terminated also under the requirements set by the Federal Constitutional Court in its leading judgment of 4 May 2011.

The applicant also submitted that under the Court’s case-law, the detention of a person as a mental health patient was only covered by sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (he referred to the case of Kallweit v. Germany, no. 17792/07, 13 January 2011 in this respect). As he had been detained in a separate wing of Diez Prison, his detention was not covered by that provision.

Moreover, the applicant argued that his detention was not “lawful” for the purposes of Article 5 § 1. He could not have foreseen at the time of his offences that, as a result of a subsequent change in the law, these could lead to his preventive detention for an indefinite duration.

(b) The Government

(i) Detention of a person “of unsound mind”

In the Government’s submission, the applicant’s preventive detention after expiry of the former ten-year time-limit on 26 October 2011 complied with Article 5 § 1. It was justified under sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”. As established by the Koblenz Court of Appeal on 5 December 2011 with the help of the report of expert V. of 2 August 2011, the applicant suffered from paedophilia and a dissocial personality disorder as defined by the relevant tools for the classification of diseases (in particular, the ICD-10) and thus from a mental disorder. The expert had found that the applicant was fixated on boys aged between six and sixteen. His dissocial personality manifested itself in continuous irresponsibility and disregard for social rules and obligations, his inability to maintain long-term relationships, his inability to feel guilty and to learn from experience, as well as his tendency to blame others and to superficially rationalise his own behaviour.

The Government argued that as a result of his mental disorder within the meaning of the Therapy Detention Act (see paragraph 39 above), the applicant was to be classified as a person “of unsound mind” for the purposes of Article 5 § 1 (e). It was not necessary, in order to comply with the requirements of the latter provision, that the disorder led to a lack of or diminished criminal responsibility under Articles 20 and 21 of the Criminal Code. Even a person who was capable of appreciating the wrongfulness of his acts and of acting in accordance with that appreciation and was therefore fully criminally liable when committing his offence could suffer from a mental disorder as a result of which there was a high risk that he committed the most serious violent or sexual offences. This interpretation had been confirmed by the Federal Constitutional Court in a decision of 15 September 2011 (file no. 2 BvR 1516/11, see paragraph 50 above).

The Government objected to the applicant’s allegation that all difficult detainees were now considered as suffering from a mental disorder so that their preventive detention could be prolonged beyond ten years. The applicant had been diagnosed as having paedophile tendencies already by the sentencing Hanau Regional Court in 1997. Moreover, 88 out of 102 persons in preventive detention, whose cases were parallel to that of M. v. Germany (cited above) and who had still been in preventive detention at the time that judgment became final on 10 May 2010, had been released by mid-2012 as a result of the requirements set by the Court and by the Federal Constitutional Court.

The Government further submitted that the additional criteria developed in the Court’s case-law (they referred to Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33) for the applicant’s detention to be justified under Article 5 § 1 (e) were equally met. The applicant’s mental disorder warranted his compulsory confinement and his continued confinement was dependent on the persistence of his mental disorder. As the domestic courts had convincingly found with the help of medical experts in their decisions at issue, there was a very high risk that the applicant, who was unable to accept the wrongfulness of his acts and still denied having harmed his victims thereby, would commit further sexual offences if released. These offences had to be considered as most serious owing to the serious consequences they would have for their young victims.

(ii) Appropriate institution for a mental health patient

The Government further took the view that the applicant’s preventive detention, unlike that of the applicant in the case of M. v. Germany (cited above), was justified under Article 5 § 1 (e) despite the fact that it was not executed in a hospital, but in Diez Prison. They noted that the Court had repeatedly found that the detention of a person as a mental health patient was only lawful if effected in a hospital, clinic or other appropriate institution (reference was made, in particular, to the case of Kallweit, cited above, §§ 46 ss.).

The Government stressed that, by its decision dated 4 May 2011, the Federal Constitutional Court had obliged the legislator to set up a new system of preventive detention in which the detainees were motivated to undergo intensive treatment and therapy until the end of May 2013 at the latest. Accordingly, on 7 March 2012 the Government had submitted to the Federal legislator a draft Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung) which was being examined by Parliament at the time of their submissions to the Court. Likewise, the Land Rhineland-Palatinate (in which Diez Prison was situated) had drafted an act on the enforcement of preventive detention to implement the new federal legislation. The Federal Constitutional Court had thus paved the way so that in cases as the present one preventive detention was only executed if it was justified under sub-paragraph (e) of Article 5 § 1. The implementation of a difference between the execution of penalties and of preventive detention guaranteed that the institutions in which preventive detention was executed against persons suffering from a mental disorder were suitable institutions for the purposes of Article 5 § 1 (e).

However, the situation could not be changed overnight. In the transitional period, the Federal Constitutional Court had therefore permitted the continuing execution of preventive detention under restrictive conditions as the authorities and courts would be faced with problems which could hardly be solved if all persons in preventive detention were to be released immediately. The Government considered that the Court had accepted this approach in its case-law. A transitional period was necessary in order for the respondent State to comply with its duty under Article 3 to protect the public from most dangerous offenders. Therefore, the Court equally had to give Member States sufficient time to fully implement its case-law.

The Government also explained that in 2012/2013 a new building for the enforcement of preventive detention was being built on the premises of Diez Prison at a total expense of 20 million euros, including, in particular, rooms measuring 18 m² and large spaces for indoor and outdoor leisure activities. A multidisciplinary staff would work in that unit. The applicant was transferred to that new building on 7 June 2013.

The Government further submitted that the execution of preventive detention against the applicant in a separate wing of Diez Prison, having regard to the offers of therapy and leisure-time activities, had differed substantially from the execution of a term of imprisonment already at the time at issue in the present application. Persons in preventive detention as the applicant could leave their living spaces most of the time during the day, move within the prison wing and use the courtyard whenever they wished, and not only one hour per day. They could use a recreation room, a gym and the unit’s kitchen and had more wide-ranging shopping opportunities than persons serving a term of imprisonment. They could further furnish their living spaces more individually and keep birds. Furthermore, they could telephone their relatives and friends almost without restriction.

As regards the execution of preventive detention in the applicant’s case, the Government submitted that the prison staff still attempted to build up the applicant’s willingness and ability to undergo therapy. Referring to the authorities’ and domestic courts’ findings in this respect (see paragraphs 26-30 above), the Government argued that the applicant had, however, lacked motivation to undergo therapy since his conviction of sexual abuse of children in 1984. Consequently, the applicant had been detained in an institution suitable for him for the purposes of Article 5 § 1 (e) as, given his lack of motivation to undergo therapy, he could not have profited from further offers of long-term treatment.

2. The Court’s assessment

(a) Recapitulation of the relevant principles

The Court reiterates that Article 5 § 1 sub-paragraphs (a) to (f) contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Guzzardi v. Italy, 6 November 1980, § 96, Series A no. 39; Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000-III; Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008; and Del Rio Prada v. Spain [GC], no. 42750/09, § 123, 21 October 2013). Only a narrow interpretation of the exhaustive list of permissible grounds for deprivation of liberty is consistent with the aim of Article 5, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; Guzzardi, cited above, § 98; and Shimovolos v. Russia, no. 30194/09, § 51, 21 June 2011).

The Court further reiterates that the term “persons of unsound mind” in sub-paragraph (e) of Article 5 § 1 does not lend itself to precise definition since its meaning is continually evolving as research in psychiatry progresses (see Winterwerp, cited above, § 37; and Rakevich v. Russia, no. 58973/00, § 26, 28 October 2003). An individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp, cited above, § 39; and Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012).

A mental disorder may be considered as being of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary as the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (compare, for example, Witold Litwa, cited above, § 60; and Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003-IV).

In deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion, in particular on the merits of clinical diagnoses, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40; X v. the United Kingdom, 5 November 1981, § 43, Series A no. 46; H.L. v. the United Kingdom, no. 45508/99, § 98, ECHR 2004-IX; Puttrus v. Germany (dec.), no. 1241/06, 24 March 2009; and S. v. Germany, no. 3300/10, § 81, 28 June 2012). The relevant time at which a person must be reliably established to be of unsound mind, for the requirements of sub-paragraph (e) of Article 5 § 1, is the date of the adoption of the measure depriving that person of his liberty as a result of that condition (compare Luberti v. Italy, 23 February 1984, § 28, Series A no. 75; B v. Germany, no. 61272/09, § 68, 19 April 2012).

Furthermore, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental health patient will only be “lawful” for the purposes of sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (see Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93; Aerts v. Belgium, 30 July 1998, § 46, Reports 1998-V; Hutchison Reid, cited above, § 49; Brand v. the Netherlands, no. 49902/99, § 62, 11 May 2004; and Kallweit v. Germany, no. 17792/07, § 46, 13 January 2011).

(b) Application of these principles to the present case

The Court is called upon to determine whether the applicant’s preventive detention at issue was justified under any of the sub-paragraphs (a) to (f) of Article 5 § 1. It shall clarify in that context that the proceedings at issue, in respect of which the applicant lodged his application with the Court, concerned his preventive detention as ordered by the Koblenz Regional Court on 16 September 2011 and as confirmed on appeal. Only the applicant’s preventive detention resulting from these proceedings is, therefore, the subject-matter of the present application.

The Court will examine, first, whether the applicant’s preventive detention at issue was justified under sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”, as was argued by the Government.

(i) Detention of a person “of unsound mind”

Under the Court’s well-established case-law (see paragraphs 72 and 74 above), this requires, firstly, that, at the time of the decision ordering the continuation of his preventive detention, the applicant was reliably shown to be of unsound mind, that is, a true mental disorder must have been established before a competent authority on the basis of objective medical expertise.

The Court notes that in the proceedings at issue for review of the necessity of the applicant’s further preventive detention, the domestic courts consulted an external psychiatric expert, V., on the applicant’s mental condition and his resulting dangerousness. In accordance with the new criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011, the Koblenz Regional Court and the Koblenz Court of Appeal, endorsing the expert’s findings, expressly established that the applicant suffered from a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act. The latter provision was phrased by reference to Article 5 § 1 (e) of the Convention.

The Court observes that under the said additional criteria set up by the Federal Constitutional Court for a prolongation of the applicant’s preventive detention beyond ten years, the courts dealing with the execution of sentences were called upon to examine, on the one hand, whether it was highly likely that the applicant would commit the most serious crimes of violence or sexual offences if released. They had to establish, on the other hand, whether the applicant suffered from a mental disorder (see paragraph 44 above and, in contrast, the situation in Kallweit, cited above, § 56; O.H. v. Germany, no. 4646/08, § 86, 24 November 2011; and Kronfeldner v. Germany, no. 21906/09, § 79, 19 January 2012). The Court is therefore satisfied that it was established before a competent legal authority, namely the courts dealing with the execution of sentences, on the basis of the objective medical expertise submitted by psychiatric expert V. that the applicant suffered from a mental disorder as defined by German law.

It remains to be determined whether the domestic courts can be said to have established that the applicant was “of unsound mind”, that is, that he suffered from a true mental disorder, for the purposes of Article 5 § 1 (e). The Court notes that the domestic courts, endorsing the findings made by the expert they had consulted, found that the applicant was a psychopath suffering from paedophilia, a sexual deviation, and from a dissocial personality. His dissocial personality was characterised by continuous irresponsibility and disregard for social rules and obligations, his inability to maintain long-term relationships, his inability to feel guilty and to learn from experience, as well as his tendency to blame others and to superficially rationalise his own behaviour (see paragraph 16 above).

The Court further observes that the domestic courts agreed with expert V. that the applicant’s mental condition could not be considered as pathological. His disorders were thus not so serious as to diminish the applicant’s criminal responsibility for the purposes of Articles 20 and 21 of the Criminal Code. It appears that the applicant’s condition and its assessment by the domestic courts in fact remained unchanged since his criminal conviction in 1997.

The Court reiterates that it has not established in its case-law a precise definition of the term “persons of unsound mind”, which does not lend itself to such a definition in view of the evolutions in psychiatric research (see paragraph 72 above). It further notes that sub-paragraph (e) of Article 5 § 1, other than sub-paragraph (a), does not only concern detention after a criminal conviction. The term “persons of unsound mind” must further be given an autonomous meaning, without the Court being bound by the interpretation of the same or similar terms in the domestic legal orders.

The Court therefore finds that it was not a precondition for the applicant to be considered as “of unsound mind” for the purposes of the Convention that he suffered from a condition which was such as to exclude or diminish his criminal responsibility under German criminal law, a view which was shared by the domestic courts, including the Federal Constitutional Court, and by the Government.

The Court would also recall, however, that the permissible grounds for deprivation of liberty listed in Article 5 § 1 are to be interpreted narrowly (see paragraph 71 above). It therefore considers that a mental condition must be of a certain gravity in order to be considered as a “true” mental disorder for the purposes of sub-paragraph (e) of Article 5 § 1. Guidance in this respect may be obtained from the Court’s well-established case-law to the effect that the detention of a person as a mental health patient will only be covered by sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (see paragraph 75 above). This implies that the mental disorder must be so serious as to necessitate treatment in such an institution.

In the present case, the Court observes that the applicant was found to be dangerous for being a psychopath. He was further diagnosed as being a ‘paedophile’ with an orientation towards boys and as having a ‘dissocial personality’. His condition could, however, not be considered as pathological. The domestic courts found that the applicant’s paedophilia and his dissocial personality were mental disorders for the purposes of the Therapy Detention Act.

The Court observes in this regard that it appears that the notion of “persons of unsound mind” (“aliéné” in the French version) in Article 5 § 1 (e) of the Convention might be more restrictive than the notion of “mental disorder” (“psychische Störung”) referred to in section 1 § 1 of the Therapy Detention Act. Nevertheless, the statistical material submitted by the Government (see paragraph 63 above), which the applicant did not contest, does not suggest that applicants in a situation comparable to that of the applicant in the M. v. Germany case are now generally being further detained as “persons of unsound mind”.

The Court doubts whether the applicant’s dissocial personality alone, which was found by the domestic authorities not to be pathological, could be considered as a sufficiently serious mental disorder so as to be classified as a “true” mental disorder for the purposes of Article 5 § 1 (e).

However, it observes that the domestic authorities considered the applicant to have a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act because, in addition to his diagnosis of dissocial personality, he was further diagnosed as having a specific sexual deviation, namely, (non-pathological) paedophilia. The applicant’s overall condition was found to be such as to require therapeutic treatment.

The Court is of the opinion, that it does not have to give a definitive answer to the question of the applicant’s classification as a “person of unsound mind” in the present case. In any case, if the Court accepted the Government’s position that, having regard to the domestic courts’ findings, the applicant did suffer from a “true” mental disorder for the purposes of Article 5 § 1 (e), it must make the following observations.

If it was accepted that the applicant suffered from a “true” mental disorder, the Court is satisfied that, as further required by its case-law (see paragraph 73 above), this disorder was of a kind or degree warranting compulsory confinement. Having regard to the unanimous findings of the domestic courts, there was a high risk that the applicant would commit further offences of sexual abuse of children of a considerable nature as a result of his mental condition if released. Furthermore, the validity of the applicant’s continued confinement depended upon the persistence of that disorder. Having regard to the new criteria developed by the Federal Constitutional Court and applied by the courts dealing with the execution of sentences, the applicant’s preventive detention could only be further executed as long as he suffered from the mental disorder at issue.

(ii) Appropriate institution for a mental health patient

The Court reiterates that, under its well-established case-law, the detention of a person as a mental health patient will, in principle, only be “lawful” for the purposes of sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (see paragraph 75 above).

The Court notes that during the period covered by the impugned decisions in the present case, the applicant was detained in a separate wing of Diez Prison for persons in preventive detention. Since 2005, he has no longer received any therapy as he did not consider himself to be in need of treatment and as all attempts to motivate him to undergo further treatment had failed.

The Court observes that in the Government’s submission, the execution of preventive detention against the applicant during that period had already differed substantially from the execution of a term of imprisonment, as opposed to the situation at issue in the case of M. v. Germany (cited above). They referred to differences concerning, in particular, the equipment of the cells, more freedom of movement within the prison wing and the courtyard, more offers and equipment for leisure activities and less restricted use of the telephone (see in detail paragraphs 69-70 above).

Having regard to the applicant’s conditions of detention in Diez Prison in the period at issue, and in particular to the lack of any substantial change in the medical or therapeutic care given to him as a person “of unsound mind”, the Court is, however, not persuaded that the applicant has been offered the therapeutic environment appropriate for a person detained as a mental health patient.

The Court does not overlook in this connection that the applicant did not undergo any treatment in prison because attempts to motivate him to do so had not yielded success. However, it would refer to its findings in previous cases that the applicant’s conduct or attitude does not exempt the domestic authorities from providing persons detained (solely) as mental health patients with a medical and therapeutic environment appropriate for their condition (compare in detail, for instance, Kallweit, cited above, § 57; O.H. v. Germany, cited above, §§ 88-91; and Kronfeldner, cited above, §§ 81-84, 19 January 2012). It can be reasonably assumed that such an environment would be more suited for motivating these persons to participate in treatment aimed at changing their condition.

The Court further takes note of the Government’s submission that the situation of persons in preventive detention could not be changed overnight and that the Court, just as the Federal Constitutional Court had done, should allow Contracting States time to fully implement its case-law.

The Court observes that following the Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011, which itself referred to the Court’s judgment, in particular, in the case of M. v. Germany (cited above), the domestic authorities have taken wide-ranging measures with a view to establishing a difference in practice between the execution of terms of imprisonment and of preventive detention orders, as requested by the Federal Constitutional Court within a time-limit fixed until 31 May 2013. To that end, the legislator, at the relevant time, had started examining the Act on establishment, at federal level, of a difference in the provisions on preventive detention compared to those on prison sentences. Likewise, new provisions on the enforcement of preventive detention were being examined by the Parliaments of the Länder. In addition, substantial construction works were started, inter alia on the premises of Diez Prison, in order to bring the accommodation for persons in preventive detention in line with the requirements set up by the Federal Constitutional Court. A multidisciplinary staff was to work in those structures where detainees were to be provided with individualised psychiatric, psychological and social therapeutic treatment.

The Court notes the positive and extensive measures which have been taken in the defendant State on judicial, legislative and executive level with a view to adapting the execution of preventive detention to the requirements, in particular, of the fundamental right to liberty in the near future.

The Court further observes that under the Federal Constitutional Court’s case-law, the applicant could lawfully be remanded in preventive detention beyond the former ten-year time-limit during the transitional period under certain restrictive conditions, including the requirement that he suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act. The Federal Constitutional Court had expressly referred to Article 5 § 1 (e) of the Convention for the interpretation of the notion of mental disorder and also to the case-law of this Court to the effect that the detention of a person as a mental health patient was only lawful for the purposes of Article 5 § 1 (e) of the Convention if effected in a hospital, clinic or other appropriate institution (see paragraph 48 above).

The Court accepts that transitional periods may be necessary in order for a State to adapt domestic law and its implementation to the requirements set by the Convention. It notes in that context that, as the Government pointed out, it has accepted in certain circumstances, in view of the principle of legal certainty, that a constitutional court may set a time-limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period (see, for instance, Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000; Roshka v. Russia (dec.), no. 63343/00, 6 November 2003; and P.B. and J.S. v. Austria, no. 18984/02, § 49, 22 July 2010; and, a contrario, Grant v. the United Kingdom, no. 32570/03, § 41, ECHR 2006-VII).

However, the Court observes that the above case-law concerned the continued application of discriminatory provisions of pension law (in the Walden case), insurance law (in the P.B. and J.S. v. Austria case) or tax law (in the Roshka case) for a transitional period until the adoption of new legislation. In the particular circumstances of those cases, the continued application of the provisions at issue could still be regarded as proportionate, for the purposes of Article 14 taken in conjunction with Article 1 of Protocol no. 1 (see Walden, cited above) or as no arbitrary confiscation, for the purposes of Article 1 of Protocol no. 1 (see Roshka, cited above), so that no Convention violation was found.

The Court finds that the nature of the Convention violations at issue in the above cases are not comparable to a breach of a person’s right to liberty under Article 5 § 1 at issue in the present application. Moreover, contrary to the essentially pecuniary damage at issue in the cases cited above, a deprivation of liberty could not be undone.

The Court would further add that it is not convinced that the domestic courts did not have the possibility to adapt the applicant’s conditions of detention so as to be appropriate for a person “of unsound mind” already at the time of the proceedings at issue. It notes that, on the one hand, it was open to the domestic courts to order the applicant’s transfer to a psychiatric hospital under Article 67a § 2, read in conjunction with § 1, of the Criminal Code (see paragraph 41 above) if they considered that the reintegration into society of the applicant, whom they considered as a person “of unsound mind”, could be better promoted thereby. On the other hand, the Therapy Detention Act permitted the placement in a suitable institution of persons suffering from a mental disorder who could no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Under section 2 of the Therapy Detention Act, the institutions concerned were to guarantee, by their medical and therapeutic offers, an adequate treatment of the mental disorder of the person concerned (see paragraphs 39-40 above). Therefore, the only alternative to prolonging the applicant’s detention in a separate wing of Diez Prison would not have been to release the applicant immediately.

In view of the foregoing, it is not necessary for the Court to determine whether, as was contested by the applicant, the detention was “lawful” for the purposes of Article 5 § 1 (e).

The Court therefore finds that the applicant’s preventive detention, executed in Diez Prison, was not justified under sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”.

The Court further considers that the applicant’s preventive detention beyond the former ten-year time-limit could not be justified under sub-paragraph (a) of Article 5 § 1 as it was no longer detention of a person “after conviction” by a competent court for the reasons set out in the case of M. v. Germany (cited above, §§ 97-101). This is in fact no longer contested by the Government. It further considers - and this is equally uncontested by the parties - that the applicant’s detention at issue could not be justified under any of the other sub-paragraphs of Article 5 § 1.

There has accordingly been a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION

The applicant complained that his disproportionately long preventive detention, and in particular his detention beyond the period of ten years, had violated the prohibition of retrospective punishment under Article 7 § 1 of the Convention, which reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Government contested that view.

A. Admissibility

B. Merits

1. The parties’ submissions

(a) The applicant

The applicant took the view that the retrospective prolongation of his preventive detention beyond the former ten-year maximum duration and his continued preventive detention from 26 October 2011 onwards had also violated Article 7 § 1 of the Convention. He referred to the Court’s findings in the case of M. v. Germany (cited above) to support his view. His preventive detention at issue still had to be classified as a “penalty” within the meaning of that provision. The execution of his detention in a separate wing of Diez Prison was not any different from the execution of a term of imprisonment.

The applicant submitted, in particular, that the cells and the offers of leisure activities in the period at issue for persons in preventive detention in Diez Prison did not differ substantially from those for persons serving a term of imprisonment in that prison. He stressed that the severity of the preventive detention order against him, which was executed already for more than ten years whereas he had only be sentenced to a term of imprisonment of four years for the offences he had committed warranted its classification as a “penalty” for the purposes of Article 7 § 1.

(b) The Government

The Government argued that the applicant’s preventive detention after expiry of the former ten-year time-limit on 26 October 2011 complied with Article 7 § 1 of the Convention. When that time-limit expired in the present case, preventive detention could no longer be classified as a penalty within the meaning of that provision, contrary to the situation at issue in the case of M. v. Germany (cited above).

The Government argued that in the latter case, it had been decisive that there was no substantial difference between the execution of a term of imprisonment and that of preventive detention and that there had been insufficient measures to prepare persons in preventive detention for a life without offences (ibid., §§ 127 and 129). These elements had also been addressed in the Federal Constitutional Court’s leading judgment of 4 May 2011. Further factors which had been relevant for the Court to classify preventive detention as a “penalty” for the purposes of Article 7 § 1, such as the fact that it was imposed by a criminal court following conviction for a criminal offence and the severity of the measure (ibid., §§ 128, 131-132), were less significant and did not justify considering preventive detention as a penalty.

In the Government’s view, preventive detention could no longer be regarded as a penalty for the purposes of Article 7 now because a significant difference was to be established by the legislator between the execution of penalties and of preventive detention until 31 May 2013. That difference had already been put in practice as far as possible in relation to the applicant’s detention in the period prior to that date here at issue.

Referring to their submissions in respect of Article 5, the Government stressed that the execution of the applicant’s preventive detention had differed significantly from that of a person serving a term of imprisonment. It had not been possible to intensify the offer of therapy made to the applicant as he had not shown willingness and ability to undergo treatment. His treatment therefore consisted in constantly attempting to raise his willingness to make a therapy.

2. The Court’s assessment

(a) Recapitulation of the relevant principles

The Court reiterates the relevant principles laid down in its case-law on Article 7 of the Convention, which have been summarised in its judgment in the case of M. v. Germany (cited above) as follows:

“117. The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S.W. v. the United Kingdom, 22 November 1995, § 34, Series A no. 335-B; C.R. v. the United Kingdom, 22 November 1995, § 32, Series A no. 335-C; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II; and Kafkaris, cited above, § 137). ...

120. 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 Uttley, cited above). The wording of Article 7 paragraph 1, second sentence, indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is 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; Jamil, cited above, § 31; Adamson v. the United Kingdom (dec.), no. 42293/98, 26 January 1999; Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006-XV; and Kafkaris, cited above, § 142). The severity of the measure is not, however, in itself decisive, since, for instance, many non-penal measures of a preventive nature may have a substantial impact on the person concerned (see Welch, cited above, § 32; compare also Van der Velden, cited above).”

(b) Application of these principles to the present case

The Court observes that the domestic courts, in their decisions here at issue, ordered the applicant’s preventive detention to continue beyond ten years. In determining whether the applicant’s detention resulting from the impugned decisions complied with the prohibition of retrospective penalties under Article 7 § 1, second sentence, of the Convention, the Court notes that the applicant committed the offences of sexual abuse of children in respect of which his preventive detention was ordered between July 1986 and December 1996. At that time, a preventive detention order made by a sentencing court for the first time, read in conjunction with Article 67d § 1 of the Criminal Code in the version then in force (see paragraph 36 above), meant that the applicant could be kept in preventive detention for ten years at the most. Based on the subsequent amendment in 1998 of Article 67d of the Criminal Code, read in conjunction with section 1a (3) of the Introductory Act to the Criminal Code (see paragraph 37 above), which abolished that maximum duration with immediate effect, the courts responsible for the execution of sentences then ordered, in the proceedings here at issue, the applicant’s continued preventive detention beyond the ten-year point. Thus, the applicant’s preventive detention - as that of the applicant in the case of M. v. Germany (cited above) - was extended with retrospective effect, under a law enacted after the applicant had committed his offences.

The Court further notes that in the case of M. v. Germany (cited above, §§ 124-133), the Court concluded that preventive detention under the German Criminal Code had to be classified as a “penalty” for the purposes of Article 7 § 1, second sentence. It takes note of the Government’s argument that the applicant’s preventive detention, contrary to the Court’s findings in the case of M. v. Germany, could no longer be considered as a “penalty” as a substantial difference was being established between the execution of a term of imprisonment and that of preventive detention.

In determining whether the applicant’s preventive detention, having regard to the criteria established in its case-law, constitutes a “penalty” within the meaning of Article 7 § 1, it reiterates that the starting-point - and thus a very weighty factor - in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a “criminal offence” (see paragraph 118 above). It notes that the applicant’s preventive detention was imposed by the Hanau Regional Court in December 1997 together with the applicant’s conviction for criminal offences, namely eleven counts of sexual abuse of children. Article 66 § 2 of the Criminal Code, under which the preventive detention order against the applicant was made, indeed allowed such an order to be made only against someone who has, amongst other requirements, been sentenced for (at least) three intentional offences to at least three years’ imprisonment (see paragraph 34 above). The applicant’s situation is thus comparable to that of the applicant in the M. v. Germany case (cited above, § 124) in this respect.

The Court would add that it was still that preventive detention ordered in 1997 which was being executed and prolonged by the courts dealing with the execution of sentences in the proceedings at issue. In particular, no use was made of the possibility provided for by the Therapy Detention Act (see paragraphs 39-40 above) to obtain an order of a civil section of the competent Regional Court for the applicant’s placement in a suitable institution for mental health patients in view of his current dangerousness. Unlike preventive detention under the Criminal Code, therapy detention under the Therapy Detention Act is not a measure imposed following and together with the conviction for a criminal offence, despite the fact that it can be ordered only in respect of persons who committed certain serious offences and were previously kept in preventive detention. Therapy detention is not designed as a sanction for a criminal offence imposed by the criminal courts. It is a measure ordered by the civil courts, outside the criminal law context, and aimed at the medical and therapeutic treatment and reduction of the current dangerousness of persons suffering from a mental disorder, who previously manifested that they posed a high risk to the public by committing a serious criminal offence.

The Court shall further have regard to the other relevant factors in assessing whether the applicant’s preventive detention was a “penalty” for the purposes of Article 7 § 1.

As regards the characterisation of preventive detention under domestic law, the Court notes that in Germany such detention is not, and has never been, considered as a penalty to which the constitutional absolute ban on retrospective punishment applies. In its leading judgment of 4 May 2011, the Federal Constitutional Court has again confirmed that preventive detention, contrary to this Court’s findings in respect of Article 7 of the Convention, was not a penalty for the purposes of the absolute prohibition of the retrospective application of criminal law under the Basic Law (see paragraph 47 above). In that context, the Court agrees with the Federal Constitutional Court’s finding that a schematic alignment of the meaning of the constitutional notion of “penalty” to that under the Convention was not mandatory if, in substance, the minimum standards set by the Convention were complied with (see paragraphs 45 and 47 above). As laid down in its case-law, the Court, for its part, must interpret the notion of “penalty” in Article 7 § 1 autonomously, having regard also to the classification of comparable measures in other Contracting Parties to the Convention (see M. v. Germany, cited above, § 126).

As regards the nature of the measure of preventive detention, the Court notes that, just like a prison sentence, preventive detention entails a deprivation of liberty. Having regard to the manner in which the preventive detention order was implemented in the present case, the Court observes that the applicant’s detention at the relevant time was executed in prison, in a separate wing for persons in preventive detention. As found above (see paragraphs 95-96), the Court, having regard to its findings in the case of M. v. Germany (cited above, § 127) and to the material before it, is not convinced that the alterations to the applicant’s detention regime at the relevant time were such as to distinguish the execution of the preventive detention order against him from that of a prison sentence.

As regards the purpose of the preventive detention order against the applicant, the Court notes that in the case of M. v. Germany (cited above, §§ 128-130), it could not subscribe to the Government’s argument that preventive detention served a purely preventive, and no punitive purpose, having regard to the realities of the situation of persons in preventive detention and, in particular, the lack of special measures for detainees in order to reduce the danger they present.

In the present case, the Court, referring to its findings above (see paragraphs 98-99), notes that at the time of the applicant’s preventive detention as a result of the proceedings here at issue, extensive measures had been initiated in the defendant State on judicial, legislative and executive level with a view to adapting the execution of preventive detention to the requirements, in particular, of the fundamental right to liberty in the near future. As a result of the changes, the adequate treatment of persons in preventive detention with a view to reducing their dangerousness shall be at the heart of the execution of preventive detention orders. However, the Court is not persuaded that during the period of the applicant’s detention here at issue, the applicant was provided with any such additional measures.

As to the procedures involved in the making and implementation of orders for preventive detention, the Court observes that, just as in the case of M. v. Germany (cited above, § 131), the applicant’s preventive detention was ordered by the sentencing courts. Its execution was determined by the courts responsible for the execution of sentences.

Finally, as regards the severity of a preventive detention order - which, as reiterated above (at paragraph 118), is not in itself decisive - the Court refers to its findings in the case of M. v. Germany (cited above, § 132) and observes that that measure still entailed detention which, following the change in the law in 1998, no longer had any maximum duration. It is true that the persons concerned had a real prospect of being released if they participated in the treatment and measures considered necessary to reduce their dangerousness. Nevertheless, the applicant’s release was not to be ordered simply after the lapse of a certain time. It was subject to a court’s finding that it was not highly likely that the applicant, owing to specific circumstances relating to his conduct, would commit the most serious offences or that he did not suffer from a mental disorder. The latter requirements set up by the Federal Constitutional Court were stricter than those at issue in the case of M. v. Germany (ibid.). Preventive detention, however, still remained among the most severe measures which may be imposed under the German Criminal Code. It is noted in that context that the applicant to date has been in preventive detention approximately three times the length of the prison sentence imposed for his sexual offences.

In view of the foregoing, the Court, looking behind the appearances and making its own assessment, concludes that the applicant’s preventive detention in the (transitional) period here at issue must still be classified as a “penalty” for the purposes of Article 7 § 1.

There has accordingly been a violation of Article 7 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant claimed 25,000 euros (EUR) plus default interest of five percentage points above the marginal lending rate since 27 October 2011 in respect of non-pecuniary damage. He argued that he had suffered frustration as a result of his continuing preventive detention, which had obviously and arbitrarily violated the Convention, and which had been prolonged despite his advanced age and his poor state of health.

The Government, referring to the Court’s awards in the case of M. v. Germany (cited above) and in follow-up cases, considered the applicant’s claim excessive. Moreover, it had to be taken into account that the applicant, as shown above, had profited from improved conditions of detention as a result of the fact that the authorities had already started to establish a greater difference between the execution of preventive detention orders and that of terms of imprisonment at the relevant time.

The Court observes that the applicant has been detained in breach of the Convention as a result of the proceedings at issue. It considers that this must have caused the applicant non-pecuniary damage such as distress and frustration, which cannot be compensated solely by the finding of a Convention violation. However, the Court must also take into account that at the time of the applicant’s detention at issue, the domestic judicial, legislative and executive authorities had started taking laudable wide-ranging measures with a view to bringing preventive detention in line with the requirements of the Basic Law and of the Convention. The Court accepts that these changes require a certain period of time to be fully implemented. In view of these elements, the Court, making its assessment on an equitable basis, awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

The applicant, who was granted legal aid in the proceedings before the Court, did not submit a claim for costs and expenses incurred in these proceedings or the proceedings before the domestic courts. Accordingly, the Court does not make any award under this head.

C. Default interest

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there has been a violation of Article 7 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> GLIEN v. GERMANY - 7345/12 - Chamber Judgment [2013] ECHR 1206 (28 November 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/1206.html Cite as: [2013] ECHR 1206