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FIFTH
SECTION
CASE OF MORK v. GERMANY
(Applications
nos. 31047/04 and 43386/08)
JUDGMENT
STRASBOURG
9 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mork v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Isabelle Berro-Lefèvre,
Ann
Power,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 31047/04 and 43386/08)
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 Hermann Walter Mork (“the applicant”),
on 18 August 2004 and 3 September 2008 respectively.
- The
applicant was represented by Ms M. Bürger-Frings, a lawyer
practising in Aachen. The German Government (“the Government”)
were represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, and by their permanent Deputy Agent, Mr
H.-J. Behrens, Ministerialrat, of the Federal Ministry of
Justice.
- The
applicant alleged, in particular, that the execution of his
preventive detention violated his right to liberty under Article 5 §
1 of the Convention.
- On
13 March 2007 a Chamber of the Fifth Section decided to adjourn the
examination of application no. 31047/04 pending the outcome of the
proceedings in the case of M. v. Germany, no. 19359/04. On 22
January 2009 the President of the Fifth Section decided to give
notice of the applications no. 31047/04 and no. 43386/08 to the
Government, requested them to submit information on changes in the
applicant’s detention regime and adjourned the examination of
the applications until the judgment in the case of M. v. Germany
(cited above) has become final. It was also decided to rule on the
admissibility and merits of the applications at the same time
(Article 29 § 1). In view of the fact that the judgment of 17
December 2009 in the case of M. v. Germany became final on 10
May 2010, the President decided on 20 May 2010 that the proceedings
in the applications at issue be resumed and granted priority to the
applications (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and is currently detained in Aachen
Prison.
A. Background to the case
- Between
1978 and 1981 the applicant was convicted, among other offences, of
numerous counts of joint burglary committed in companies and shops
and was imprisoned from March 1980 until February 1985.
- In
1986 the Dortmund Regional Court convicted the applicant of
trafficking in drugs (hashish and cocaine) and sentenced him to eight
years’ imprisonment. The applicant was in pre-trial detention
and served his sentence from August 1985 until June 1993.
- In
December 1996 the applicant was arrested and placed in pre-trial
detention on suspicion of drug trafficking; he has remained in prison
since then.
B. The proceedings before the sentencing courts
(application no. 31047/04)
1. The proceedings before the Regional Court and the
Federal Court of Justice
- In
a judgment dated 9 February 1998 the Aachen Regional Court convicted
the applicant of unauthorised importing of drugs and of drug
trafficking committed in 1996 and involving some 280 kilos of
hashish. It sentenced him to eight years and six months’
imprisonment. It decided not to order the applicant’s
preventive detention under Article 66 of the Criminal Code (see
paragraphs 22-23 below) as it was not convinced that the applicant
was dangerous to the public owing to a disposition to commit serious
offences. In this assessment, the court took into consideration that
the applicant had not attempted to avert his punishment by lodging
numerous procedural motions and had agreed to the forfeiture of money
stemming from drug trafficking. The applicant claimed that he had
struck a deal with the Regional Court on the latter’s proposal
that the court would impose a sentence of less than ten years and
would not order his preventive detention if he ceased to contest the
court’s finding of fact. The Government submitted that there
was no indication in the case-file that such an agreement had been
made.
- In
a judgment dated 7 April 1999 the Federal Court of Justice dismissed
an appeal by the applicant on points of law. It allowed an appeal by
the prosecution regarding the Regional Court’s decision not to
order the applicant’s preventive detention and quashed the
judgment in this respect as the Regional Court had not given valid
reasons for considering the applicant not to be dangerous to the
public.
- In
a judgment dated 14 November 2001 a different chamber of the Aachen
Regional Court ordered the applicant’s (first) indefinite
preventive detention pursuant to Article 66 § 1 of the Criminal
Code. Having consulted a psychiatric expert and having regard to the
applicant’s personality and his previous convictions, the court
considered that the applicant had a disposition to commit serious
offences, was likely to commit further serious drug offences and was
thus dangerous to the public.
- In
a decision dated 31 May 2002 the Federal Court of Justice dismissed
as ill-founded an appeal by the applicant on points of law, in which
the latter had complained that provisions of substantive law had not
been complied with (allgemeine Sachrüge).
2. The proceedings before the Federal Constitutional
Court
- On
24 June 2002 the applicant, without being represented by counsel,
lodged a constitutional complaint with the Federal Constitutional
Court against the two judgments of the Regional Court and the
judgment and the decision of the Federal Court of Justice. He
complained, in particular, that preventive detention was incompatible
with his right to liberty under Article 5 § 1 of the Convention,
which did not cover such a preventive measure. It further violated
the prohibition of retrospective punishment under the Basic Law and
Article 7 of the Convention because it was incompatible with the
principle of legal certainty and because his preventive detention had
been ordered without a maximum duration of ten years, which had been
the maximum penalty at the time he committed his offences.
Furthermore, his right to a fair trial had been breached in that the
domestic courts had not subsequently respected the deal struck with
the Regional Court that he would not further contest the court’s
finding of facts in exchange for the court not ordering his
preventive detention.
- On
11 March 2004 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
1046/02). The Federal Constitutional Court found that in so far as
the applicant complained about the judgment of the Regional Court of
9 February 1998 and that of the Federal Court of Justice of 7 April
1999, he had lodged his constitutional complaint out of time. In so
far as the applicant complained that the Regional Court’s order
for his preventive detention in its judgment of 14 November 2001
lacked a valid legal basis and was arbitrary, his complaint was
inadmissible for non-exhaustion of domestic remedies. The court found
that the applicant had failed to submit his statement of the grounds
of his appeal on points of law nor had he claimed before it that he
had complained about the unconstitutionality of the amended
provisions on preventive detention and about their application by the
Regional Court to him before the Federal Court of Justice, at least
by complaining that provisions of substantive law had not been
complied with.
C. The proceedings before the courts dealing with the
execution of sentences (application no. 43386/08)
1. The proceedings before the Regional Court
- On
13 July 2007 the Bochum Regional Court, acting as the court dealing
with the execution of sentences, having heard the applicant in
person, ordered the applicant’s placement in preventive
detention as of 25 July 2007 (Article 67c § 1 of the
Criminal Code; see paragraph 24 below), that is, as from the day on
which the applicant would have served his full prison sentence. The
court fully agreed with the findings of a psychiatric and
psychotherapeutic expert it had consulted on the applicant’s
dangerousness. In his report dated 7 May 2007 the expert, having
examined the applicant, had considered that, if released, the
applicant was very likely to commit further serious offences similar
to those he had previously committed. He was still dangerous to the
public as he had to date failed to reflect sufficiently on his
numerous offences. Even assuming that the security measures taken
against him by the prison authorities had not been justified, this
did not alter the fact that there had not been a consistent treatment
limiting the risk that he would reoffend after his release.
2. The proceedings before the Court of Appeal
- On
6 September 2007 the Hamm Court of Appeal, endorsing the reasons
given by the Regional Court, dismissed the applicant’s appeal.
- On
24 January 2008 the Hamm Court of Appeal rejected an objection
(Gegenvorstellung) by the applicant.
3. The proceedings before the Federal Constitutional
Court
- On
17 October 2007 the applicant lodged a constitutional complaint with
the Federal Constitutional Court against the Regional Court’s
decision of 13 July 2007 and the Court of Appeal’s decision of
6 September 2007. By submissions dated 3 March 2008 he extended his
complaint to the Hamm Court of Appeal’s decision of 24 January
2008. He claimed, in particular, that the order to place him in
preventive detention disproportionately interfered with his right to
liberty. He argued that the expert report on which the courts dealing
with the execution of sentences had relied had not been drawn up in
due form, that the courts had failed to give convincing reasons, in
view of his mostly less serious previous convictions, why he was
likely to commit further serious offences if released and that he had
been refused relaxations in the conditions of his detention without
convincing reasons.
- On
14 July 2008 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
2356/07). It found, in particular, that the decisions of the courts
dealing with the execution of sentences to order the applicant’s
placement in preventive detention had not violated the applicant’s
right to liberty. The Federal Constitutional Court found that the
Regional Court’s assessment that the applicant had repeatedly
committed serious offences was not arbitrary as the latter had been
sentenced to one term of eight years’ imprisonment and another
of eight years and six months. The expert report, which was of recent
date, was sufficiently substantiated. In so far as the applicant had
been refused relaxations in the conditions of his detention, the
Constitutional Court noted that the courts dealing with the execution
of sentences had not based their decision to order preventive
detention globally on the fact that the applicant had failed to prove
that he was no longer dangerous in the course of such relaxations. If
the prison authorities refused to grant the applicant relaxations in
the conditions of his detention in the future, the applicant had to
raise this issue with the competent lower courts first. In view of
the courts’ assessment that the applicant was likely to commit
further serious offences if released, their finding that the interest
in public safety prevailed over the applicant’s right to
liberty had been proportionate.
D. Subsequent developments
- On
12 August 2009 the Aachen Regional Court, acting as the court dealing
with the execution of sentences, refused to suspend the execution of
the preventive detention order against the applicant on probation.
That decision was confirmed on appeal.
II. RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE
A. Provisions concerning preventive detention
- A
comprehensive summary of the provisions of the Criminal Code and of
the Code of Criminal Procedure governing the distinction between
penalties and measures of correction and prevention, in particular
preventive detention, and the making, review and execution in
practice of preventive detention orders, is contained in the Court’s
judgment in the case of M. v. Germany
(no. 19359/04, §§ 45-78, 17 December 2009). The
provisions referred to in the present case provide as follows:
1. 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
dangerous to the public (Article 66 of the Criminal Code).
- In
particular, the sentencing court orders preventive detention in
addition to the penalty if someone is sentenced for an intentional
offence to at least two years’ imprisonment and if the
following further conditions are satisfied. Firstly, the perpetrator
must have been sentenced twice already, to at least one year’s
imprisonment in each case, for intentional offences committed prior
to the new offence. Secondly, the perpetrator must previously have
served a prison sentence or must have been detained pursuant to a
measure of correction and prevention for at least two years. Thirdly,
a comprehensive assessment of the perpetrator and his acts must
reveal that, owing to his propensity to commit serious offences,
notably those which seriously harm their victims physically or
mentally or which cause serious economic damage, the perpetrator
presents a danger to the general public (see Article 66 § 1 of
the Criminal Code, in its version in force at the relevant time).
2. The duration of preventive detention
- Article
67c § 1 of the Criminal Code provides that if a term of
imprisonment is executed prior to a simultaneously ordered placement
in preventive detention, the court responsible for the execution of
sentences (that is, a special Chamber of the Regional Court composed
of three professional judges, see sections 78a and 78b(1)(1) of the
Court Organisation Act) must review, before completion of the prison
term, whether the person’s preventive detention is still
necessary in view of its objective. If that is not the case, it
suspends on probation the execution of the preventive detention
order; supervision of the person’s conduct commences with
suspension.
- Under
Article 67d § 1 of the Criminal Code, in its version in force
prior to 31 January 1998, the first placement in preventive detention
may not exceed ten years. If the maximum duration has expired, the
detainee shall 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, provided 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 conduct of
the offender. 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.
B. Relevant case-law of the Federal Constitutional
Court
1. Case-law on lodging a constitutional complaint
- Under
the well-established case-law of the Federal Constitutional Court, a
complainant is obliged to submit to that court, within the one month
time-limit running from the notification of the impugned court
decision, either a copy of the impugned decisions and of all
documents necessary for their understanding or at least to set out
their content in a manner allowing for a control of their
constitutionality (see, inter alia, the decisions of the
Federal Constitutional Court of 16 December 1992, file no. 1 BvR
167/87, Collection of the decisions of the Federal Constitutional
Court (BVerfGE), vol. 88 (1993), pp. 40 ss., 45; of 10 October
1995, file nos. 1 BvR 1476, 1980/91 and 102, 221/92, Collection of
the decisions of the Federal Constitutional Court, vol. 93 (1996),
pp. 266 ss., 288; confirmed, for instance, by a decision of 18 March
2009, file no. 2 BvR 1350/08). No distinction was made
in these decisions between complainants who were and those who were
not represented by counsel.
2. Recent case-law on preventive detention
- 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 (compare the provisions in paragraphs 25-26 above) and
about the retrospective order of the complainants’ preventive
detention respectively (file nos. 2 BvR 2365/09, 2 BvR
740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The
Federal Constitutional Court held that all provisions on the
retrospective prolongation of preventive detention and on the
retrospective order 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 provisions of the
Criminal Code on the imposition and duration of preventive detention
at issue were incompatible with the fundamental right to liberty of
the persons in preventive detention because 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 most. In
relation to detainees whose preventive detention had been prolonged
or ordered retrospectively, 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. 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. 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). 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).
THE LAW
I. JOINDER OF THE APPLICATIONS
- Given
that the present two applications concern two sets of proceedings in
both of which a similar subject-matter, namely the applicant’s
preventive detention, was at issue, the Court decides that the
applications shall be joined (Rule 42 § 1 of the Rules of
Court).
II. COMPLAINTS CONCERNING THE ORDER OF THE APPLICANT’S
PREVENTIVE DETENTION BY THE SENTENCING COURT
- The
applicant complained in application no. 31047/04 that the order for
his indefinite preventive detention, being a penalty, was
incompatible with Article 7 § 1 of the Convention. In
particular, at the time when he committed his offences a first order
of preventive detention could not be made for an unlimited period,
but only for a maximum duration of ten years. He further argued that
his deprivation of liberty also failed to comply with Article 5 §
1 of the Convention because the order for his preventive detention
was in breach of Article 7 § 1. Moreover, in the applicant’s
submission, his right to a fair trial under Article 6 § 1 of the
Convention had been infringed in that the deal struck with the
Regional Court that he would not further contest the facts in
exchange for the court not ordering his preventive detention had not
been honoured by the Federal Court of Justice, although he had not
been informed by the Regional Court that the Federal Court of Justice
was not bound by that agreement.
A. The parties’ submissions
- The
Government argued that the applicant’s complaints concerning
the order for his preventive detention by the sentencing courts were
inadmissible as the applicant had failed to exhaust domestic remedies
as required by Article 35 § 1 of the Convention. They underlined
that in its decision of 11 March 2004, the Federal Constitutional
Court had dismissed the applicant’s constitutional complaint as
he had partly lodged it out of time, partly failed to demonstrate
that he had exhausted domestic remedies in the proceedings before the
lower courts. The Federal Constitutional Court had not been obliged
to request the applicant to submit further documents before taking
its decision and had not applied procedural provisions in an
arbitrary manner to the applicant’s detriment.
- The
applicant contested that view. He argued that, given that he had not
been represented by counsel in the proceedings before the Federal
Constitutional Court, that court had been obliged to request him to
submit further information and documents it considered necessary for
deciding on the merits of his case. He submitted that he had in fact
complained before the Federal Court of Justice that provisions of
substantive law had not been complied with.
B. The Court’s assessment
- The
Court reiterates that, whereas Article 35 § 1 of the Convention
must be applied with some degree of flexibility and without excessive
formalism, it does not require merely that applications should be
made to the appropriate domestic courts and that use should be made
of effective remedies designed to challenge decisions already given.
It normally requires also that the complaints intended to be brought
subsequently before the Court should have been made to those same
courts, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law (see, among
other authorities, Cardot v. France, 19 March 1991, § 34,
Series A no. 200; Fressoz and Roire v. France [GC],
no. 29183/95, § 37, ECHR 1999 I; and Elçi
and Others v. Turkey, nos. 23145/93 and 25091/94, §
604, 13 November 2003). Consequently, domestic remedies have not been
exhausted when an appeal is not admitted because of a procedural
mistake by the applicant (see, inter alia, Skałka
v. Poland (dec.), no. 43425/98, 3 October 2002).
- The
Court further reiterates that it is in the first place for the
national authorities, and notably the courts, to interpret domestic
law – in particular rules of a procedural nature such as
time-limits governing the filing of documents or the lodging of
appeals – and that the Court will not substitute its own
interpretation for theirs in the absence of arbitrariness (compare,
inter alia, Fáber v. the Czech Republic, no.
35883/02, §§ 55-56, 17 May 2005; and Agbovi v. Germany
(dec.), no. 71759/01, 25 September 2006).
- The
Court, even assuming that this part of the case is compatible ratione
personae with the provisions of the Convention in all respects
(compare in this respect, in particular, Meyer-Falk v. Germany
(dec.), no. 47678/99, 30 March 2000), notes that in the present
case, the Federal Constitutional Court considered that the
applicant’s complaint about the Regional Court’s order of
14 November 2001 for his preventive detention was inadmissible for
non-exhaustion of domestic remedies. The Federal Constitutional Court
found that the applicant had failed to demonstrate that he had
previously submitted that complaint to the Federal Court of Justice.
He should either have submitted a copy of his statement of the
grounds of his appeal on points of law to the Federal Constitutional
Court or at least have argued before that latter court that he had
complained before the Federal Court of Justice that provisions of
substantive law had not been complied with. The applicant was thus
found not to have complied with a purely formal requirement for
lodging a constitutional compliant.
- The Court further observes that under its
well-established case-law, the Federal Constitutional Court requires
complainants, irrespective of whether they are represented by
counsel, to submit all information and documents necessary for the
consideration of their constitutional complaint on their own motion
within the prescribed time-limit (see paragraph 27 above). It does
not discern any arbitrariness in the domestic court’s
application of its procedural rules to the applicant in the present
case. Consequently, the applicant failed to exhaust domestic remedies
in compliance with the formal requirements laid down in domestic law
in so far as he complained before the Court that the order for his
preventive detention failed to comply with Articles 5 and 7 of the
Convention.
- In
so far as the applicant further complained under Article 6 § 1
of the Convention that he had not had a fair trial in that the deal
struck with the Regional Court that he would not further contest the
facts in exchange for the court not ordering his preventive detention
had not been honoured by the Federal Court of Justice, the same
considerations apply. Moreover, assuming that this complaint related
(also) to the judgments of the Aachen Regional Court of 9 February
1998 and of the Federal Court of Justice of 7 April 1999, the
applicant equally failed to exhaust domestic remedies. The Federal
Constitutional Court’s finding that he lodged his
constitutional complaint of 24 June 2002 outside the (one-month)
time-limit does not disclose any arbitrary application of the
national procedural rules either.
- It
follows that the Government’s objection must be allowed and
this part of the case be dismissed for
non-exhaustion of domestic remedies, pursuant to Article 35 §§
1 and 4 of the Convention.
III. COMPLAINT CONCERNING THE EXECUTION OF THE PREVENTIVE
DETENTION ORDER AGAINST THE APPLICANT
- The
applicant complained in application no. 43386/08 that the execution
of his preventive detention had infringed his right to liberty as
provided in Article 5 § 1 of the Convention, which 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
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
- The
applicant argued that his actual placement in preventive detention
failed to comply with Article 5 § 1 of the Convention. He
submitted that his detention, a preventive measure aimed at
protecting the public, was not covered by any of the sub-paragraphs
(a) to (f) of Article 5 § 1. In particular, his preventive
detention was not “lawful” within the meaning of
sub-paragraph (a) of Article 5 § 1 because, having been
classified as a penalty by the Court in its judgment in the case of
M. v. Germany (cited above), it amounted to an
illegal double punishment for the same offence. Moreover, his
preventive detention did not occur after a “conviction”
because it was not imposed following a finding of guilt of an actual
offence – this applied to the prison sentence alone – but
to prevent potential future offences.
- The
applicant further argued that the Court’s findings in the case
of M. v. Germany (cited above) obliged the domestic courts to
apply a strict standard as regards the proportionality of long
deprivations of liberty. His preventive detention was therefore
disproportionate in view of the fact that he had not committed
violent or sexual offences and had wrongly been considered dangerous
both by the psychiatric expert and by the domestic courts.
- The
Government took the view that the applicant’s preventive
detention complied with Article 5 § 1. It was true that the
Aachen Regional Court’s order for the applicant’s
preventive detention made in its judgment of 14 November 2001,
following the change in the law in 1998, could be executed for more
than ten years, even though the applicant had committed the offences
in question at a time when the execution of a first preventive
detention order could not exceed ten years (see paragraphs 25-26
above). However, the applicant had been in preventive detention only
for some three years at present. Referring to the Court’s
findings in the case of M. v. Germany (cited above,
§ 96), they considered that the preventive detention of the
applicant here at issue was covered by sub-paragraph (a) of Article 5
§ 1 as being detention after his conviction by the Aachen
Regional Court on 14 November 2001.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
- The
Court refers to the fundamental principles laid down in its case law
on Article 5 § 1 of the Convention, which have been summarised
in relation to applications concerning preventive detention in its
judgment of 17 December 2009 in the case of M. v. Germany, no.
19359/04 (§§ 86 91) and in its judgment of 21
October 2010 in the case of Grosskopf v. Germany, no.
24478/03 (§§ 42-44).
- It
reiterates, in particular, that for the purposes of sub-paragraph (a)
of Article 5 § 1, the word “conviction” has to be
understood as signifying both a finding of guilt after it has been
established in accordance with the law that there has been an offence
and the imposition of a penalty or other measure involving
deprivation of liberty (see Van Droogenbroeck v. Belgium,
24 June 1982, § 35, Series A no. 50; and M. v. Germany,
cited above, § 87). Furthermore, the word “after” in
sub-paragraph (a) does not simply mean that the “detention”
must follow the “conviction” in point of time: There must
be a sufficient causal connection between the conviction and the
deprivation of liberty at issue (see Stafford v. the United
Kingdom [GC], no. 46295/99, § 64, ECHR 2002 IV;
Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR
2008 ...; and M. v. Germany, cited above, § 88).
However, with the passage of time, the causal link between the
initial conviction and a further deprivation of liberty gradually
becomes less strong and might eventually be broken if a position were
reached in which a decision not to release 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 those objectives (see M. v. Germany, cited above, §
88, with further references).
(b) Application of these principles to the
present case
- The
Court notes at the outset that in the present application
no. 43386/08, the applicant contested the compliance with
Article 5 § 1 of the decision of the domestic courts to order
his actual placement in preventive detention in 2007/2008 after he
had fully served his prison sentence.
- In
determining whether the applicant was deprived of his liberty in
compliance with Article 5 § 1 during that preventive detention,
the Court refers to its findings in its recent judgment of 17
December 2009 in the case of M. v. Germany (cited above). In
that judgment, it found that Mr M.’s preventive
detention, which, as in the present case, was ordered by the
sentencing court under Article 66 § 1 of the Criminal Code, was
covered by sub-paragraph (a) of Article 5 § 1 in so far as
it had not been prolonged beyond the statutory ten-year maximum
period applicable at the time of that applicant’s offence and
conviction (see ibid., §§ 96 and 97-105). The Court
was satisfied that Mr M.’s initial preventive detention
within that maximum period occurred “after conviction” by
the sentencing court for the purposes of Article 5 § 1 (a).
- Having
regard to these findings in its judgment in the application of M.
v. Germany, from which it sees no reason to depart, the Court
considers that the preventive detention under Article 66 of the
Criminal Code of the applicant in the present case was based on his
“conviction”, for the purposes of Article 5 § 1 (a),
by the Aachen Regional Court on 14 November 2001. However, the Court
emphasises that unlike the applicant in the M. v. Germany
case, the applicant in the present case was not in preventive
detention for a period beyond the statutory ten-year maximum period,
applicable at the time of his offence, at the time of the domestic
court decisions here at issue.
- Moreover,
the applicant’s preventive detention at issue occurred “after”
conviction. Thus, there has been a sufficient causal connection
between his conviction and the deprivation of liberty. Both the order
for the applicant’s preventive detention by the sentencing
Aachen Regional Court in November 2001 and the decision of the Bochum
Regional Court, responsible for the execution of sentences, of July
2007, confirmed on appeal, not to release the applicant, were based
on the same grounds, namely to prevent the applicant from committing
further serious drug offences, similar to those he had previously
committed, on release. There is nothing to indicate that the
assessment, that the applicant was likely to reoffend in that manner,
which the domestic courts had reached after having consulted a
psychiatric and psychotherapeutic expert on that point, was
unreasonable in terms of the objectives of the initial preventive
detention order by the sentencing court.
- The
applicant’s preventive detention was also lawful in that it was
based on a foreseeable application of Article 66 § 1 and Article
67c § 1 of the Criminal Code. The Court takes note, in this
connection, of the reversal of the Federal Constitutional Court’s
case-law concerning preventive detention in its leading judgment of 4
May 2011 (see paragraphs 28–31 above). It welcomes the Federal
Constitutional Court’s approach of interpreting the provisions
of the Basic Law also in the light of the Convention and this Court’s
case-law, which demonstrates that court’s continuing commitment
to the protection of fundamental rights not only on national, but
also on European level.
- The
Court further observes that the Federal Constitutional Court, in its
said judgment, considered, inter alia, Article 66 of the
Criminal Code in its version in force since 27 December 2003 not to
comply with the right to liberty of the persons concerned. It
understands that the applicant’s preventive detention, when
reviewed in the future, will be prolonged only subject to the strict
test of proportionality as set out in the Federal Constitutional
Court’s judgment (see paragraph 30 above). It notes, however,
that the applicant’s preventive detention here at issue was
ordered and executed on the basis of a previous version of Article 66
of the Criminal Code. In any event, Article 66 of the Criminal Code
in its version in force since 27 December 2003 was not declared void
with retrospective effect, but remained applicable and thus a valid
legal basis under domestic law, in particular, for the time preceding
the Federal Constitutional Court’s judgment. Therefore, the
lawfulness of the applicant’s preventive detention at issue for
the purposes of Article 5 § 1 (a) is not called into question.
- There
has accordingly been no violation of Article 5 § 1 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the complaint under Article 5 § 1
of the Convention concerning the execution of the applicant’s
preventive detention admissible and the remainder of the applications
inadmissible;
- Holds that there has been no violation of
Article 5 § 1 of the Convention.
Done in English, and notified in writing on 9 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
