TrustHLT/LaCour huggingface dataset:
GR1 (Government): Among the criteria used by this court to determine whether a national measure qualifies as a penalty in the sense of Article 7 are in particular its nature and purpose.
GR1 (Government): A change in the nature and purpose of a measure can also change its character.
GR1 (Government): If sufficient changes are put in effect, a measure will lose its previous penal character and be transformed from a penalty into a measure of an entirely different quality with regard to Article 7.
GR1 (Government): The government acknowledged that the applicant's detention could be considered as a penalty for the purposes of the Convention before 20 June 2013 because he was detained in conditions similar to those in a prison and without being offered comprehensive treatment for his mental disorder.
GR1 (Government): However, as has already been explained, his transfer to the new Straubing Preventive Detention Centre has so fundamentally changed the nature and purpose of his detention that it is now definitely not a penalty but has become approximate to treatment in the closed ward of a psychiatric hospital.
GR1 (Government): The applicant's preventive detention is undoubtedly severe.
GR1 (Government): But this court has acknowledged that the severity of the measure is not in itself decisive for purposes of its characterisation as a penalty.
GR1 (Government): This is because many non-penal measures of a preventive nature have a substantial impact on the person concerned.
GR1 (Government): One example being that person's treatment in the closed ward of a psychiatric hospital.
GR1 (Government): Nobody qualifies such treatment as a penalty.
GR1 (Government): The duration of the applicant's preventive detention depends on the success of the therapy offered to him.
GR1 (Government): If he cooperates, which he has not yet done sufficiently, he can considerably improve the prospects of being released.
GR1 (Government): The fact that it was a criminal court which originally made the preventive detention order and now regularly reviews its continuation ex officio is not decisive either.
GR1 (Government): This attribution of competence does not qualify the measure as a penalty.
GR1 (Government): Rather, it serves a practical purpose.
GR1 (Government): The criminal courts have much experience with regard to the detention of persons who suffer from mental disorders.
GR1 (Government): They regularly decide about the institutionalisation in psychiatric hospitals of mentally ill persons who committed crimes.
GR1 (Government): It is therefore consistent to give criminal courts competences also with regard to the preventive detention of persons of unsound mind who have a criminal record, in accordance with Article 5, Paragraph 1, Letter E of the Convention.
GR1 (Government): Finally, the fact that the applicant's preventive detention was ordered subsequent to his conviction of a crime does not turn his detention into a penalty.
GR1 (Government): In this regard, it is important to take into account that the preventive detention order was issued by the regional court at the end of a separate procedure in 2012, many years after the applicant's conviction of and sentencing for murder in 1999.
GR1 (Government): His previous murder conviction is not the reason for his continuing preventive detention.
GR1 (Government): Rather, the reason is his present mental disorder in the form of sexual sadism and his ensuing dangerousness, in the sense that he is highly likely to commit another most serious crime of violence, if released.
GR1 (Government): The requirement that persons of unsound mind may only be kept in preventive detention for an extended period of time, if their dangerousness has already become manifest in a serious crime, goes back to the Federal Constitutional Court.
GR1 (Government): That court determined in 2004 that without such an underlying serious crime, the preventive detention of those persons was incompatible with the constitutional principle of proportionality.
GR1 (Government): In other words, requiring a prior criminal conviction as a condition for the applicant's preventive detention is intended to keep interferences in his personal liberty at a minimum, which is quite in accordance with the regulatory goal of Article V of the Convention.
GR1 (Government): It does not transform that detention into a penalty.
GR1 (Government): the application of the criteria used by this court to identify the penal character of the measure for the purposes of Article VII leads to the overall result that the applicant's preventive detention is not a penalty.
GR1 (Government): Its nature and purpose clearly qualify it as a therapeutic measure, similar to the confinement in a psychiatric hospital, to which it is also equivalent regarding its severity.
GR1 (Government): The fact that the preventive detention was imposed by a criminal court for practical reasons is not decisive.
GR1 (Government): Finally, the fact that the applicant's preventive detention is related to his murder conviction does not turn it into a penalty either.
GR1 (Government): This is because the murder conviction is not the true reason for his detention, but only one additional limitative factor.
GR1 (Government): All in all, there has been no violation of Article VII either, though that the applications are altogether ill-founded.
GR1 (Government): At the end of my argument, I want to emphasize once more that the intensive dialogue between this court and the Federal Constitutional Court has substantially improved the law and practice of preventive detention in Germany since 2009.
GR1 (Government): The German authorities, both on the federal level and in all constituent states, have done their utmost to implement the requirements of the convention as defined by this court.
GR1 (Government): Their efforts were based on a political consensus across party lines that the human rights of persons in preventive detention need to be upheld, even though they are but a small minority without powerful political lobby.
GR1 (Government): This is a fine example of successful multi-level cooperation in human rights implementation.
GR1 (Government): We view it as an important achievement, fully consistent with the convention, and I move that the Grand Chamber acknowledge it as such.
Guido Raimondi (JudgeP): Thank you very much, Professor Giegerich, and I thank both parties for their submissions.
Guido Raimondi (JudgeP): And now I invite my colleagues, the members of the Grand Chamber, wishing to do so, to put their questions to the parties.
Guido Raimondi (JudgeP): I understand that Judge Sicilianos has one or more questions.
Linos-Alexandre Sicilianos (Judge): Merci, Monsieur le Président.
Linos-Alexandre Sicilianos (Judge): Je voudrais poser une question au gouvernement et une autre question au requérant.
Linos-Alexandre Sicilianos (Judge): Bien évidemment, chaque parti pourrait commenter sur ces questions.
Linos-Alexandre Sicilianos (Judge): La question au gouvernement.
Linos-Alexandre Sicilianos (Judge): Le requérant vient de nous dire que parmi les personnes détenues avec lui à la Facilité spéciale de Straubing, la majorité ne souffre pas de troubles mentaux.
Linos-Alexandre Sicilianos (Judge): Le gouvernement, pour sa part, vient de dire que la grande majorité de ces personnes, la grande majorité, mais pas tous, souffre de différentes formes de troubles mentaux.
Linos-Alexandre Sicilianos (Judge): Dans le système allemand, tel que modifié depuis 2011, la détention préventive est-elle associée uniquement avec l'existence de troubles mentaux ou bien elle peut être ordonnée également à l'égard de condamnés dangereux qui ne souffrent pas d'une maladie mentale?
Linos-Alexandre Sicilianos (Judge): Ma deuxième question va au requérant.
Linos-Alexandre Sicilianos (Judge): Elle concerne l'article 5, paragraphe 4 de la Convention.
Linos-Alexandre Sicilianos (Judge): Vous vous plaignez notamment de la durée de la procédure devant la Cour constitutionnelle. Vous avez relevé aussi
Linos-Alexandre Sicilianos (Judge): le rôle particulier de la Cour constitutionnelle allemande.
Linos-Alexandre Sicilianos (Judge): Aviez-vous la possibilité d'obtenir un nouveau contrôle de l'ordonnance de placement d'étention devant les juridictions ordinaires alors même que la procédure antérieure était toujours pendante devant la Cour constitutionnelle?
Linos-Alexandre Sicilianos (Judge): Merci Mr. le President.
Guido Raimondi (JudgeP): Merci beaucoup, M. le juge.
Guido Raimondi (JudgeP): Now Judge Paulo Pinto de Albuquerque
Paulo Pinto de Albuquerque (Judge): Thank you very much, Mr. President.
Paulo Pinto de Albuquerque (Judge): My questions are addressed to the government, but of course the applicant can comment on them.
Paulo Pinto de Albuquerque (Judge): I would like the government to elaborate on the concept that is enshrined in the Therapy Detention Act, the "Therapie Unterbringungsgesetz", the concept of "psychische Störung", mental disorder.
Paulo Pinto de Albuquerque (Judge): Does it extend to non-pathological disorders or any other social deviance behavior?
Paulo Pinto de Albuquerque (Judge): Ultimately, who has the final saying with regard to these mental disorders?
Paulo Pinto de Albuquerque (Judge): Is the judge competent or the psychologists or psychiatrists who has the final saying in characterizing this mental disorder?
Paulo Pinto de Albuquerque (Judge): My second question regards the preventive detention itself foreseen by this Therapy Detention Act.
Paulo Pinto de Albuquerque (Judge): Can you explain the nature of this measure in the light of the classic dualism between penalties and security measures in German law?
Paulo Pinto de Albuquerque (Judge): If it is not a penalty, a "Strafe", is it a "Massregel der Besserung"?
Paulo Pinto de Albuquerque (Judge): Is it a measure of prevention?
Paulo Pinto de Albuquerque (Judge): Or not even a measure of criminal law?
Paulo Pinto de Albuquerque (Judge): But then why is it applied on the basis of a criminal conviction of mentally ill, of mentally sane persons?
Paulo Pinto de Albuquerque (Judge): And in this particular case, in our case, by a criminal chamber?
Paulo Pinto de Albuquerque (Judge): It seems that the Therapy Detention Act foresaw the competence of civil chambers, not criminal chambers.
Paulo Pinto de Albuquerque (Judge): That leads me to my third point, which refers to an issue raised by the government themselves.
Paulo Pinto de Albuquerque (Judge): What is the difference between the internment in a psychiatric hospital under Article 63 of the "Strafgesetzbuch" and the internment in preventive detention centers under the "Therapie Unterbringungsgesetz"?
Paulo Pinto de Albuquerque (Judge): The government used a word, a very peculiar word.
Paulo Pinto de Albuquerque (Judge): It's approximate.
Paulo Pinto de Albuquerque (Judge): The regimes are approximate.
Paulo Pinto de Albuquerque (Judge): What does this mean in terms of the classic dualism between penalties and security measures in German law?
Guido Raimondi (JudgeP): Now, Judge Jäderblom, please.
Helena Jäderblom (Judge): Thank you, Mr. President.
Helena Jäderblom (Judge): Can you hear me?
Helena Jäderblom (Judge): Yes, now I'm on.
Helena Jäderblom (Judge): I have a question to the government.
Helena Jäderblom (Judge): The government said that it would be irresponsible to release this person.
Helena Jäderblom (Judge): And I wonder if this implies that the applicant, if released or no longer detained under criminal law, could not be detained under the Bavarian legislation on the detention of dangerous persons of unsound mind where a criminal conviction is not a precondition.
Iulia Antoanella Motoc (Judge): Merci beaucoup, Monsieur le requérant.
Iulia Antoanella Motoc (Judge): Monsieur le Président, mes questions s'adressent au Récurrent, au gouvernement, et en même temps, ils visent le problème de l'âge très jeune, jeune du Récurrent au moment où il avait commis l'infraction.
Iulia Antoanella Motoc (Judge): Donc, une partie importante de la défense du requérant se base sur cet âge très jeune.
Iulia Antoanella Motoc (Judge): Le requérant nous avait dit que les experts n'étaient pas vraiment qualifiés pour faire des expertises sur les jeunes adultes ou sur les mineurs.
Iulia Antoanella Motoc (Judge): Cette affirmation, maintenant, a été contredite par le gouvernement qui nous avait dit qu'en fait, ces experts avaient cette qualification, mais le gouvernement avait ajouté que, même si à l'époque où l'ordonnance de mise en attention a été formulée, le requérant n'était plus mineur.
Iulia Antoanella Motoc (Judge): Donc, je voulais exactement savoir comment est-ce que le jeune âge du requérant, il a joué pendant cette expertise qui a été faite pendant l'ordonnance, et comment est-ce que cet âge jeune joue aussi par rapport à cette mesure préventive qui est appliquée.
Guido Raimondi (JudgeP): Merci beaucoup, Mme la juge.
Guido Raimondi (JudgeP): Mme la juge, juge Dedov, s'il vous plaît.
Dmitry Dedov (Judge): I have questions to both parties about the psychiatric treatment.
Dmitry Dedov (Judge): I see that both parties mentioned today that the applicant was subject to the psychological treatment.
Dmitry Dedov (Judge): And this is what I see from the observation of the government and the government mentioned that today that there is a sociopedagogical group measures.
Dmitry Dedov (Judge): However, according to the psychiatric standards, ICD-10, the European standards mentioned by the government in its observations, the treatment also should include some sort of psychopharmaceutical intervention, antipsychotics, antidepressants.
Dmitry Dedov (Judge): So my question is whether there was such a treatment, whether the word therapy included this.
Dmitry Dedov (Judge): This is because the observations of the parties are very controversial about what kind of treatment.
Dmitry Dedov (Judge): So what kind of, whether the treatment was in compliance with the psychiatric standards.
Dmitry Dedov (Judge): The sexual sadism is a very severe disorder.
Dmitry Dedov (Judge): However, under the same standards, there is a scale of severity.
Dmitry Dedov (Judge): Whether the scale of severity was diagnosed by the experts, so whether there is a necessity and requirement that the person with such a disorder should come through the special clinical tests.
Dmitry Dedov (Judge): According to the case file and the observation of the parties, it appears that the diagnosis was taken in accordance with the interviews with the applicant.
Dmitry Dedov (Judge): Just what he said without, or maybe with, this is what I would like to clarify, the point is to clarify whether there was a so-called differential analysis, differential test diagnosis provided for the applicant.
Dmitry Dedov (Judge): I also have a question.
Dmitry Dedov (Judge): Whether there is a requirement under German law that if the person, I mean the very first event when the applicant committed a crime.
Dmitry Dedov (Judge): So the crime was committed, there was a murder, a very serious crime, which the punishment for which is lifelong punishment, which was recognized by the government.
Dmitry Dedov (Judge): So it's a very serious crime, especially aggravated by the sexual act.
Dmitry Dedov (Judge): So whether the psychiatric test, psychiatric examination of such a person is necessary, is obligatory from the very beginning.
Dmitry Dedov (Judge): So it was not done and I have no information whether there is a requirement under German law.
Guido Raimondi (JudgeP): maintenant la Madame la Juge Karakaş.
Işıl Karakaş (Judge): Oui, merci beaucoup, M. le Président.
Işıl Karakaş (Judge): Et je voudrais juste demander, on comprend qu'après les observations des partis, les conditions matérielles dans ces centres de détention, de sûreté, sont évoluées.
Işıl Karakaş (Judge): Est-ce qu'on peut dire la même chose?
Işıl Karakaş (Judge): Peut-on constater la même amélioration dans le cadre des soins médicaux, d'une manière générale, par rapport, je dirais, aux soins qui peuvent être prodigés dans un hôpital psychiatrique normal, je dirais, ou civil?
Işıl Karakaş (Judge): Et je veux aussi dire que, dans le cadre du requérant, est-ce qu'on peut dire que ce centre qui se trouve est adapté à ses besoins, c'est-à-dire un traitement pour le sadisme sexuel?
Guido Raimondi (JudgeP): There are no more questions, Judge Ravarani.
Georges Ravarani (Judge): Merci, monsieur le Président.
Georges Ravarani (Judge): Je voudrais poser une question qui, sous différents angles, a déjà été posée et elle s'adresse aux deux partis, mais aussi sous différents auspices.
Georges Ravarani (Judge): Pour le gouvernement, je ne sais pas s'il peut répondre, car la question devrait d'abord être posée aux tribunaux.
Georges Ravarani (Judge): Était-il envisageable et envisagé de faire juger la question de la détention du requérant après qu'il avait purgé sa peine par des tribunaux civils?
Georges Ravarani (Judge): Et pour le requérant, quels auraient été les avantages concrets, et j'insiste sur concrets, pour lui s'il avait été jugé par des tribunaux civils?
Guido Raimondi (JudgeP): There are no more questions, the court will now withdraw for 20 minutes following which the parties will be able to submit brief observations in reply to each other submissions and reply to the questions of the judges, the hearing is suspended.
Guido Raimondi (JudgeP): So the hearing is resumed, and I call Mr. Tegebauer.
AP1 (Applicant): first I will deal with a question posed by Judge Sicilianos concerning Article 5, Paragraph 4 of the Convention.
AP1 (Applicant): At the time the constitutional complaint was pending before the Federal Constitutional Court, there was no additional remedy under domestic law to challenge the order of the provisional preventive detention and the appeal could only be filed with the court once.
AP1 (Applicant): I will now answer the questions concerning the treatment of the applicant.
AP1 (Applicant): The applicant was only offered conversations with the therapist and group conversations.
AP1 (Applicant): No medical treatment was offered to the applicant.
AP1 (Applicant): The scale of the mental disorder was not determined by the experts examining the applicant and the proceedings before the Regensburg Regional Court leading to the judgment of 3 August 2012.
AP1 (Applicant): The treatment is not as good than in psychiatry because there is no sufficient evidence and because there is no sufficient therapeutic environment.
AP1 (Applicant): The civil courts are as experienced and qualified to decide on the confinement of mental health patients.
AP1 (Applicant): The fact that a criminal court took the decision indicates that preventive detention constitutes a penalty.
AP1 (Applicant): I would also like to reply to some of the government's observations.
AP1 (Applicant): The government observed that the replacement of the therapist, Mr. K., was ordered by the Regional Court
AP1 (Applicant): in its last decision on the continuation of the preventive detention.
AP1 (Applicant): But this is not true.
AP1 (Applicant): The court did not order the replacement of Mr. K.
AP1 (Applicant): It was a decision taken by the preventive detention center.
AP1 (Applicant): Moreover, the government observed that psychological treatment is offered to all persons detained in the preventive detention center.
AP1 (Applicant): However, the fact remains that only 5 persons there are mental health patients.
AP1 (Applicant): The rest is not diagnosed to be of unsound mind.
AP1 (Applicant): They are placed under Article 63 of the criminal court providing for preventive detention and not under Article 66 of the criminal court providing for confinement in psychiatry.
AP1 (Applicant): Therefore, the preventive detention center is not an appropriate institution.
AP1 (Applicant): My colleague Mr. Mavani will now deal
AP1 (Applicant): with a further question posed by the judges.
Guido Raimondi (JudgeP): Please, Mr. Mavany.
AP2 (Applicant): I will make a remark on the question on behalf of the qualification of the experts.
AP2 (Applicant): The qualification of the experts on behalf of young adults is necessary because the preventive detention of the applicant was and still is based on the rules of the Juvenile Court Act because of the applicant's age when he committed the offense.
AP2 (Applicant): There in Article 43, paragraph 2, provides, I quote, where necessary, an examination of the accused shall be made in particular to determine his state of development or other characteristics essential to the process.
AP2 (Applicant): Where possible, an expert qualified to examine young people is to be entrusted with carrying out the order.
AP2 (Applicant): The necessity of the expertise in juvenile offenders is not only a formal need.
AP2 (Applicant): Such experts are more competent to examining the development of the patient in his adult age too.
AP2 (Applicant): The experts never fulfilled this condition.
AP2 (Applicant): I make one more remark about whether the diagnosis of a true mental disorder is a condition to order the preventive detention.
AP2 (Applicant): By Article 66 of the Criminal Code, they are now stated the following conditions.
AP2 (Applicant): The person must have committed a serious crime plus a former conviction for a criminal offense prior to the one that this is now dealt in the present case.
AP2 (Applicant): And third, the danger is of the person to be a threat to the public because of the risk to commit more serious crimes like the first one is here to be seen.
AP2 (Applicant): These are the conditions.
AP2 (Applicant): There is nothing said about a mental disorder as a condition for a preventive detention order.
Guido Raimondi (JudgeP): Thank you very much. Now I call Professor Giegerich, please.
GR1 (Government): I'd like to answer the question posed by Judge Sicilianos.
GR1 (Government): It is indeed true that a mental disorder is not a legal requirement for all cases of preventive detention, but it is a legal requirement for cases of retrospective preventive detention to keep that in conformity with Article 5, paragraph 1, letter E of the Convention.
GR1 (Government): But for all cases of preventive detention, the criminal code presupposes in Article 66, letter C, section 1, that detention shall be carried out in institutions which offer a psychiatric, psycho, or sociotherapeutical treatment tailored to the needs of the detainee.
GR1 (Government): And as a matter of fact, it turned out after an examination by a psychologist in the Straubing Preventive Detention Centre that 80% of the inmates, including those under ordinary preventive detention which was not retrospectively imposed, 80% of those had a personality disorder which required treatment, psychological or at least sociotherapeutical treatment.
GR1 (Government): The question posed by Judge Pinto de Albuquerque, we must keep in mind that the Therapy Detention Act is obsolete.
GR1 (Government): It does no longer apply.
GR1 (Government): And no one is currently, there is just one person still detained on the basis of that act in Germany, but no detentions will be ordered on the basis of that act.
GR1 (Government): Detentions will be ordered on the basis of that act anymore.
GR1 (Government): Rather, the conditions were now included in Article 316F of the introductory law to the criminal code.
GR1 (Government): On both bases, on the basis of the old and now obsolete the Detention Act, as well as on the basis of Article 316F of the criminal code, a socially deviant behavior will never be sufficient to justify preventive detention in cases like the one of the applicant.
GR1 (Government): You need a disorder coming up to the standards of the ICD-10 of the World Health Organization.
GR1 (Government): And because the Therapy Detention Act is no longer applied, the civil courts do not play a role in the detention of persons like the applicant in practice.
GR1 (Government): Who has the final say?
GR1 (Government): The final say rests with the courts.
GR1 (Government): They determine whether someone should be placed in preventive detention or kept in preventive detention.
GR1 (Government): But they decide on the basis of medical expertise.
GR1 (Government): But it's ultimately a judicial decision.