TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): It contends that criminal courts are particularly experienced in assessing the necessity of confining mental health patients whose mental state can lead to serious crimes.
AP2 (Applicant): However, in this respect, civil courts, in fact, and law are at least as experienced as criminal courts.
AP2 (Applicant): For instance, under Article 312 of the Act on the Procedure in Family Matters and in Matters of Noncontinuous Jurisdiction, civil courts are competent to order the detention of persons of unsound mind according to the mentioned law of the land of Bavaria on detention of persons of unsound mind.
AP2 (Applicant): This act provides for the confinement of persons who suffer from a mental disorder and are suspected to be dangerous for the public.
AP2 (Applicant): Furthermore, civil courts are dealing with the Therapy Detention Act as well.
AP2 (Applicant): Thus, civil courts have as much experience and legal expertise in this field as criminal courts.
AP2 (Applicant): Finally, the severity of the measure must be regarded.
AP2 (Applicant): In M versus Germany, the court found that preventive detention in absence of a maximum duration is one of and maybe the severest measure known by domestic law.
AP2 (Applicant): There are reviews and regular interviews, as the government mentioned, but this does not affect the severity of the measure.
AP2 (Applicant): It rather constitutes a procedure because of the given severity.
AP2 (Applicant): Although it is true that the applicant is, in principle, free to request a review at any time, the court can suspend the applicant's right to request a review for a certain period.
AP2 (Applicant): Coming up, all the given points, all criteria state by the court in its case law indicate that the applicant's preventive detention has to be classified as a penalty, according to Article 7.
AP2 (Applicant): Although conditions changed with the applicant's transfer to Straubing Preventive Detention Center, the situation is still close to imprisonment and far away from the situation in a psychiatric hospital.
AP2 (Applicant): Against this background, I will briefly make a remark on question 3, subparagraph B of the questions of the party.
AP2 (Applicant): What is the impact on the fact that prior to the 20th June 2013, the applicant was kept in Straubing prison?
AP2 (Applicant): In the present case, it is uncontested that prior to 20th June 2013, the applicant's preventive detention violated Article 7, paragraph 1, second sentence, and Article 5, paragraph 1 of the convention.
AP2 (Applicant): As a result, there are three consequences.
AP2 (Applicant): First, the applicant is entitled to compensation.
AP2 (Applicant): The government acknowledged the violation of the convention and granted compensation by means of a unilateral declaration.
AP2 (Applicant): Second, the execution of preventive detention did not only violate the convention.
AP2 (Applicant): It also rendered the order of preventive detention of the Regensburg Regional Court unlawful.
AP2 (Applicant): Both the practical implementation of preventive detention and the judgment are connected.
AP2 (Applicant): They cannot be treated isolated.
AP2 (Applicant): The government stated that it would be overly formalistic to require a new judicial decision to justify the applicant's transfer to the new preventive detention facility.
AP2 (Applicant): It is not.
AP2 (Applicant): It is based on the rule of law and required by the convention as well.
AP2 (Applicant): Not the transfer to the new facility.
AP2 (Applicant): The preventive detention as such has to be ordered again.
AP2 (Applicant): Article 5, paragraph 1 requires a detention under subparagraphs A to F to be lawful.
AP2 (Applicant): The judgment of the Regensburg Regional Court of 3 August 2012 is, as it was shown, unlawful, which the government admits at its unilateral declaration.
AP2 (Applicant): A justified penalty under Article 7 must be based on a lawful verdict, too.
AP2 (Applicant): Therefore, the judgment of the Regensburg Regional Court of 3 August 2012 has to be quashed and the case remitted for a new trial.
AP2 (Applicant): Without a new judgment, there's a lack of legal basis for the applicant's preventive detention in both periods, until 20 June 2013, as well as since then onwards.
AP2 (Applicant): Third, the Regensburg Regional Court, at the time of the delivery of its judgment of 3 August 2012, was aware that the applicant was placed in a separate wing of Straubing Prison in reach of Article 7 and Article 5 of the Convention.
AP2 (Applicant): The government contends that at this time, the new center for preventive detention was under construction.
AP2 (Applicant): However, there were and still are plenty of alternatives.
AP2 (Applicant): In Germany, there are many hospitals providing treatments for persons who suffer from a mental disorder.
AP2 (Applicant): Many of them take care of patients suspected to be a threat to the public and are therefore looked up.
AP2 (Applicant): A therapy detention act and the law of the land of Bavaria of the detention of persons of unsound mind, provide for the option to confine persons of unsound mind in a psychiatric hospital.
AP2 (Applicant): If this option would have been chosen, the applicant could have been transferred to an institution sufficiently staffed and equipped to treat him appropriately.
AP2 (Applicant): One final question needs to be answered.
AP2 (Applicant): Can the applicant's preventive detention be said to have been ordered retrospectively, and if so, in what sense?
AP2 (Applicant): The applicant's preventive detention has been ordered retrospectively, and this on two grounds.
AP2 (Applicant): When the applicant was convicted in 1999 for a criminal offense committed in 1997 as a young adult offender, neither his preventive detention was ordered in the decision, nor did the law provide for this measure regarding juvenile offenders or young adults.
AP2 (Applicant): Only 11 years later, by the law on the introduction of retrospective preventive detention for convictions under criminal law relating to young offenders, of 8th July 2008, which entered in force on 12th July 2008, was Article 7, Paragraph 2 inserted into the Juvenile Court Act.
AP2 (Applicant): This law provided for the possibility to order preventive detention against juvenile offenders and young adults after the conviction, although it was not yet in force when the offense was committed.
AP2 (Applicant): In its leading judgment of 4th May 2011, the Federal Constitutional Court found Article 7, Paragraph 2 of the Juvenile Court Act to be unconstitutional inter alia because of its retrospective effects.
AP2 (Applicant): Besides, the Federal Constitutional Court, in its judgment, explicitly referred the court's decision in M versus Germany and the violation of Article 7 of the Convention.
AP2 (Applicant): To cut a long story short, the applicant's preventive detention was and still is to be classified as a penalty under Article 7 of the Convention.
AP2 (Applicant): It was ordered with retrospective effect under a law enacted after the applicant had committed this offense.
AP2 (Applicant): This, even though there were plenty of alternatives to treat the applicant properly and in accordance with the Convention.
AP2 (Applicant): The applicant invites the court to find a violation of Article 5, Paragraph 1 and Paragraph 4, Article 6, Paragraph 1, and Article 7, Paragraph 1 of the Convention.
Guido Raimondi (JudgeP): Thank you very much, Mr. Mavany.
Guido Raimondi (JudgeP): I call Professor Giegerich, please, you have the floor.
GR1 (Government): Mr. President and Honourable Judges of the Court,
GR1 (Government): I will argue, firstly, that the applicant's preventive detention has, since 20 June 2013, always been and still is justified under Article 5, Paragraph 1, Letter E of the Convention.
GR1 (Government): And secondly, that since that same date, his detention can no longer be characterised as a penalty in the sense of Article 7, Paragraph 1 of the Convention.
GR1 (Government): For lack of violations of the Convention, the applications are ill-founded.
GR1 (Government): German criminal law has long distinguished between penalties such as imprisonment on the one hand and non-penal measures such as preventive detention on the other.
GR1 (Government): This distinction permits German criminal courts to impose prison terms commensurate to the guilt reflected in each crime, irrespective of the dangerousness of the individual criminal.
GR1 (Government): If it appears to the sentencing court that the criminal will still be dangerous after having fully deserved prison term, it can additionally order preventive detention under strict conditions set forth in the law.
GR1 (Government): Because of that two-tier system, the prison terms in Germany are relatively short compared to those in other Convention states.
GR1 (Government): Even if one adds up the number of prisoners serving terms of more than 10 years and the number of persons in preventive detention, the sum for Germany remains under 3,000, less than half the number for France and only 1 6th the number for the United Kingdom, even though Germany's population is considerably larger than that of France or the United Kingdom.
GR1 (Government): These data prove that Germany does not abuse preventive detention to lock up a disproportionately high percentage of the population for long periods of time.
GR1 (Government): Quite the contrary.
GR1 (Government): In 2009, however, this court decided, in the case of MV Germany, that the retrospective imposition of preventive detention, as it was regulated and practiced at that time, violated Articles 5 and 7.
GR1 (Government): Two years later, the Convention standards clarified by this court were translated into German constitutional law by the Federal Constitutional Court.
GR1 (Government): This is an important example of successful cooperation between the two courts for the sake of effective human rights protection.
GR1 (Government): In order to transpose the requirements of the two courts, Germany carried out a fundamental reform of both the law and practice of preventive detention.
GR1 (Government): The Federation and all the constituent states enacted new statutes on preventive detention.
GR1 (Government): The states spent over 200 million euros on new buildings and hired a large number of additional personnel specifically to care for persons in preventive detention.
GR1 (Government): This reform has once and for all clarified the fundamental difference between the penalty of imprisonment and the non-penal measure of preventive detention.
GR1 (Government): It has also considerably improved the situation of the applicant with regard to the therapy offered to him, his accommodation, and the degree of freedom he enjoys in the new preventive detention center since 20th June, 2013.
GR1 (Government): This court has acknowledged Germany's sincere efforts to comply with its obligations under the Convention in several chamber judgments.
GR1 (Government): Mr. President and honorable members of the court,
GR1 (Government): as far as Article 5, Paragraph 1 is concerned, the applicant is a person of unsound mind in the sense of letter E, who is being lawfully detained in an appropriate institution in accordance with this court's case law.
GR1 (Government): The court has established three minimum conditions for justifying detention on the basis of Article 5, Paragraph 1, letter E. In the applicant's case,
GR1 (Government): these conditions are clearly fulfilled.
GR1 (Government): Firstly, he has reliably been shown on the basis of objective medical expertise to suffer from a true mental disorder.
GR1 (Government): Secondly, his mental disorder is of a kind and degree warranting compulsory confinement.
GR1 (Government): And thirdly, the mental disorder persists and warrants his continued confinement.
GR1 (Government): Concerning the first condition, the applicant's mental disorder is sexual sadism, including fantasies of violence entailing the strangulation of women.
GR1 (Government): Sexual sadism is a sexual preference disorder listed in the relevant international classification of diseases of the World Health Organization.
GR1 (Government): The applicant's sexual sadism was established before a competent court on the basis of objective medical expertise in proceedings meeting all due process standards.
GR1 (Government): The regional court held hearings for 24 days, consulted two external psychiatric experts, and also took into consideration the findings and testimony of several other experts who had previously examined the applicant.
GR1 (Government): Contrary to applicants' assertions, the selection of psychiatric experts in this case did not run afoul of Article 43, Paragraph 1 of the Juvenile Courts Act.
GR1 (Government): The experts were well qualified to evaluate the mental state of the applicant.
GR1 (Government): First of all, they are both renowned experts in forensic psychiatry with many years of experience, working not only with adults, but also with adolescent criminal offenders.
GR1 (Government): Moreover, the regional court decided on the applicant's preventive detention when he was no longer an adolescent, but an adult already in his 30s.
GR1 (Government): And finally, the applicant himself proposed both experts during other stages of the proceedings, thus accepting their competence.
GR1 (Government): Concerning the second condition of Article 5, Paragraph 1, Letter E, the applicant's sexual sadism warrants compulsory confinement.
GR1 (Government): In contrast to what Intervena wants to make the court believe, the applicant is not arbitrarily being deprived of his liberty simply because of a vague assumption of dangerousness.
GR1 (Government): Rather, he was first diagnosed by medical experts as suffering from a true mental disorder, and subsequently found to pose a high risk of committing most serious crimes of violence because of that disorder.
GR1 (Government): That risk was deduced from concrete circumstances in the person and behavior of the applicant.
GR1 (Government): It would be irresponsible to release him before his sexual sadism is properly treated.
GR1 (Government): Intervena points to the possibility of diagnostic errors, which can indeed never be excluded.
GR1 (Government): But since Article 5, Paragraph 1, Letter E, expressly permits states to detain persons of unsound mind on the basis of medical expertise, the Convention ultimately accepts that risk if the National Court minimizes it as far as possible.
GR1 (Government): This was done in the instant case by carefully selecting the medical experts and critically assessing the plausibility of their expertise.
GR1 (Government): Moreover, in each of the later review procedures, the regional court commissioned a different external expert.
GR1 (Government): Concerning the third condition of Article 5, Paragraph 1, Letter E, the applicant's mental disorder and ensuing dangerousness persist.
GR1 (Government): His mental state is reexamined ex officio at annual intervals, and the diagnosis was last confirmed by the competent court in April 2017 on the basis of new medical expertise.
GR1 (Government): Whenever deciding about the preventive detention of persons of unsound mind on the basis of German law, all German courts observe the standards of Article 5, Paragraph 1, Letter E, which is directly applicable.
GR1 (Government): Moreover, pursuant to the binding case law of the Federal Constitutional Court, German courts are subject to a constitutional obligation to abide by Article 5, Paragraph 1, Letter E in cases like the incident.
GR1 (Government): That constitutional obligation can, if necessary, be enforced by lodging a constitutional complaint.
GR1 (Government): Mr. President and honorable judges of the court,
GR1 (Government): you also require that detentions based on Article 5, Paragraph 1, Letter E are executed in institutions appropriate for mental health patients.
GR1 (Government): Since 20th June 2013, the applicant has been detained in such an institution.
GR1 (Government): The Straubing Preventive Detention Center was newly built in order to fulfill the precepts formulated by this court in MV Germany and adopted by the Federal Constitutional Court.
GR1 (Government): The center is situated in a fenced-off compound adjacent to the prison and entirely separate from it in regard of accommodation of inmates, staffing, internal rules, material conditions, and therapies.
GR1 (Government): There, the applicant is offered individualized and reinforced medical and therapeutic treatment by specialized personnel in order to cure his mental disorder and enable his release as soon as possible.
GR1 (Government): Immediately after the applicant's transfer to the new center, an individualized therapy plan was made, which is continuously updated and implemented.
GR1 (Government): Moreover, intensive efforts have been made by psychologists and social pedagogues ever since to incentivize the applicant's cooperation in the treatment program.
GR1 (Government): For two reasons, however, these incentivization efforts have not been successful.
GR1 (Government): Firstly, the applicant considers his preventive detention, including the therapy offers, as unlawful.
GR1 (Government): Secondly, he also refuses to accept the expert's diagnosis that he suffers from sexual sadism and needs appropriate treatment before he can be released.
GR1 (Government): It is in connection with that second reason that the preventive detention center recently ordered a change of therapists.
GR1 (Government): It did so because the competent court supervising the applicant's detention and treatment suggested on the basis of medical expertise that the applicant's sexual sadism be treated.
GR1 (Government): Since the previous therapist refused to do so, a change of therapists was inevitable.
GR1 (Government): It is certainly within the competence of the national authorities to decide about the proper therapy in such a case.
GR1 (Government): Moreover, the applicant should have challenged the change of therapists in the competent German court instead of bringing the issue before the grand chamber.
GR1 (Government): The applicant vainly tries to second-guess his detention in an appropriate institution for mental health patients by arguing that only a small group of fellow inmates were persons of unsound mind.
GR1 (Government): Contrary to his allegations, however, most of the inmates of the Straubing Center suffer from various forms of mental disorders.
GR1 (Government): 80% of them have personality disorders and need appropriate treatment.
GR1 (Government): The fact that only few are sexual sadists, as the applicant, cannot call into question the center's character as an appropriate institution for his treatment.
GR1 (Government): There, persons with different mental disorders may just live together, but each of them is offered the individualized treatment which is appropriate for his specific disorder.
GR1 (Government): As a matter of fact, the same holds true for psychiatric hospitals.
GR1 (Government): When the applicant's preventive detention was originally ordered in August 2012, he had to be temporarily placed in a separate wing of the prison which did not meet the requirements of an appropriate institution for mental health patients.
GR1 (Government): The reason was that the new preventive detention center could not be completed until 10 months later.
GR1 (Government): In view of the applicant's dangerousness, however, it was absolutely impossible to release him intermittently.
GR1 (Government): But this does not mean that the regional court willfully disobeyed the judgment in MV Germany.
GR1 (Government): Rather, it trusted that this court would acknowledge the practical difficulties which impeded the immediate implementation of the convention standards in Germany and concede a transitional period, just as the Federal Constitutional Court had done.
GR1 (Government): As it turned out later in Glen, V Germany, however, the court was unwilling to do so.
GR1 (Government): This is why the government acknowledged that the applicant's preventive detention violated the convention until 20 June 2013, when he was transferred to the new preventive detention center.
GR1 (Government): With this transfer, however, the violation was definitely terminated.
GR1 (Government): It is immaterial that the regional court did not issue a new decision to justify the applicant's detention in the new center.
GR1 (Government): As a matter of fact, the national courts have meanwhile three times confirmed that the applicant's preventive detention in the new center must continue because his mental disorder has not yet been cured, so that he still poses a high risk of committing another most serious crime of violence.
GR1 (Government): It is not true that the reform of the German law on preventive detention amounted to nothing but redefining all those into persons of unsound mind whose preventive detention violated the convention according to M. V. Germany.
GR1 (Government): As a matter of fact, 88 out of 102 persons in preventive detention whose cases were parallel to M. V. Germany were released as a result
GR1 (Government): of the reexamination of their detention on the basis of Article V, Paragraph 1, Letter E of the convention that had been ordered by the Federal Constitutional Court.
GR1 (Government): Since that time, preventive detention in this kind of cases is used sparingly and in strict conformity with the convention as interpreted by this court.
GR1 (Government): Contrary to the applicant's argument, it is not incompatible with the convention to impose preventive detention on persons such as the applicant who committed crimes while young adults.
GR1 (Government): Since they are transferred to preventive detention only after having served their prison terms, they will always be at least 21 years old at that time.
GR1 (Government): The applicant was well over 30 when his preventive detention was ordered.
GR1 (Government): There is definitely no contradictory European consensus.
GR1 (Government): Apart from Germany, a number of other convention states such as the United Kingdom, France, Italy, Poland, the Czech Republic, and Switzerland permit the preventive detention of persons who committed crimes as young adults.
GR1 (Government): Others may well impose prison terms on young adults, which are much longer than in Germany.
GR1 (Government): All in all, since 20th June 2013, the applicant's preventive detention has been and still is justified in accordance with the strict requirements of Article 5, Paragraph 1, Letter E.
GR1 (Government): Accordingly, it does not violate Article 5.
GR1 (Government): the applicant's preventive detention does not conflict with Article 7, Paragraph 1, either.
GR1 (Government): Since his transfer to the new preventive detention center, it can no longer be qualified as a penalty.
GR1 (Government): I have already explained that the Straubing Center provides adequate therapy for persons of unsound mind, such as the applicant, who need to be kept in detention because their mental disorder makes them dangerous.
GR1 (Government): That center is not a prison for criminals.
GR1 (Government): Rather, it meets standards approximate to those in the closed ward of a psychiatric hospital, providing all the conditions necessary to carry out an individualized and effective therapy of mental disorders.
GR1 (Government): Accordingly, the applicant is no longer detained as a criminal, but as a person of unsound mind in the sense of Article 5, Paragraph 1, Letter E, who also has a criminal record.
GR1 (Government): This detention does not pursue the typical penal purposes of retribution and deterrence, but is purely preventive.
GR1 (Government): This is not a redefinition on paper, but a complete reorientation that is also implemented in everyday practice.
GR1 (Government): The applicant's detention guarantees his individualized therapeutic treatment while preventing his escape because, as a sexual sadist, he poses an extreme threat to others.
GR1 (Government): Accordingly, he will be released as soon as therapeutic success has sufficiently reduced the risk that he will commit most serious crimes of violence.