10.  The applicant was born in 1978 and is currently detained in the centre for persons in preventive detention on the premises of Straubing Prison (hereinafter “the Straubing preventive detention centre”).
11.  On 29 October 1999 the Regensburg Regional Court convicted the applicant of murder and, applying the criminal law relating to young offenders, sentenced him to ten years’ imprisonment. It found that in June 1997 the applicant, then aged nineteen, had strangled a woman who had been jogging on a forest path by use of considerable force with a cable, a tree branch and his hands, had partly undressed the dead or dying victim and had then masturbated. The court, having consulted two medical experts, found that the applicant had acted with full criminal responsibility when killing the woman for sexual gratification and in order to cover up his intended rape. The court noted that, despite indications to that effect, both experts had not wished to draw the conclusion that the applicant suffered from a sexual deviancy as the young applicant had made few statements on the motives for his offence.
12.  On 12 July 2008 a new legislative provision, section 7(2) of the Juvenile Courts Act, entered into force. It authorised the ordering of subsequent preventive detention (see for the terminology also paragraphs 104-106 and 157 below) of persons convicted under the criminal law relating to young offenders (see paragraphs 54-57 below).
13.  From 17 July 2008 onwards, after he had served his full prison sentence, the applicant was remanded in provisional preventive detention under Article 275a § 5 of the Code of Criminal Procedure (see paragraph 61 below).
14.  On 22 June 2009 the Regensburg Regional Court, with Judge P. sitting on the bench, ordered the applicant’s subsequent preventive detention under section 7(2)(1) of the Juvenile Courts Act, read in conjunction with section 105(1) of the Juvenile Courts Act (see paragraphs 56 and 59 below). The court, having regard to the reports made by a criminological expert (Bo.) and a psychiatric expert (Ba.), found that the applicant continued to harbour violent sexual fantasies and that there was a high risk that he would again commit serious sexual offences, including murder for sexual gratification, if released. On 9 March 2010 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the Regional Court’s judgment.
15.  On 4 May 2011 the Federal Constitutional Court, in a leading judgment, allowed the applicant’s constitutional complaint. It quashed the Regional Court’s judgment of 22 June 2009 and the Federal Court of Justice’s judgment of 9 March 2010 and remitted the case to the Regional Court. It further found the order for the applicant’s provisional preventive detention – which had become devoid of purpose once the order for the applicant’s subsequent preventive detention in the main proceedings had become final – to be unconstitutional (file no. 2 BvR 2333/08 and no.  2 BvR 1152/10). The Federal Constitutional Court found that the impugned judgments and decisions had violated the applicant’s right to liberty and the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law (see in more detail paragraphs 68-75 below).
16.  On 5 May 2011 the applicant requested that the Regensburg Regional Court order his immediate release. He claimed that following the Federal Constitutional Court’s judgment of 4 May 2011, which had quashed the judgment ordering his subsequent preventive detention, there was no longer any legal basis for his detention.
17.  On 6 May 2011 the Regensburg Regional Court, allowing the Public Prosecutor’s request of 5 May 2011, again ordered the applicant’s provisional preventive detention under sections 7(4) and 105(1) of the Juvenile Courts Act, read in conjunction with Article 275a § 5, first sentence, of the Code of Criminal Procedure (see paragraphs 59 and 61 below). The court found that the applicant’s provisional preventive detention was necessary because there were weighty grounds for expecting that his subsequent preventive detention would be ordered under section  7(2)(1) of the Juvenile Courts Act, read in the light of the judgment of the Federal Constitutional Court of 4 May 2011.
18.  By submissions dated 27 June 2011, received by the Regional Court on 29 June 2011, the applicant lodged an appeal against the Regional Court’s decision, for which he submitted further statements of grounds on 15, 19, 22, 25 and 26 July 2011. He claimed, in particular, that his provisional preventive detention was unlawful.
19.  On 4 July 2011 the Regensburg Regional Court refused to amend its decision of 6 May 2011.
20.  On 16 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s appeal as ill-founded. It had regard to: (i) a request lodged by the Nuremberg General Public Prosecutor on 20 July 2011 requesting the dismissal of the applicant’s appeal; (ii) the findings of fact made by the Regensburg Regional Court in its judgment of 22 June 2009; (iii) the findings of two medical experts in the proceedings leading to the judgment of 22 June 2009; (iv) the findings of two other experts in previous proceedings regarding the applicant’s mental condition and the level of danger that he posed; and (v) the new restrictive standards set by the Federal Constitutional Court in its judgment of 4 May 2011.
21.  On 29 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s complaint regarding a breach of his right to be heard and his objection to the decision of 16 August 2011. The decision was served on counsel for the applicant on 6 September 2011.
22.  On 7 September 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Regensburg Regional Court dated 6 May 2011, as confirmed by the Nuremberg Court of Appeal. He further requested that the execution of those decisions be stayed by way of an interim measure until the Federal Constitutional Court delivered its decision. The applicant claimed, in particular, that his right to a speedy decision, enshrined in his constitutional right to liberty, had not been respected in the proceedings concerning the review of his provisional preventive detention.
23.  On 18 October 2011 the Federal Constitutional Court communicated the applicant’s constitutional complaint to the regional Government of Bavaria, to the President of the Federal Court of Justice and to the General Public Prosecutor at the latter court.
24.  On 25 October 2011 the Federal Constitutional Court, in a reasoned decision, refused to stay the order for the applicant’s provisional preventive detention by way of an interim measure.
25.  By submissions dated 1 January 2012 the applicant replied to the submissions of the regional Government of Bavaria, of the President of the Federal Court of Justice and of the General Public Prosecutor at the latter court dated 28, 24 and 25 November 2011 respectively.
26.  On 22 May 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1952/11). The decision was served on counsel for the applicant on 30 May 2012.
27.  On 17 November 2011 the applicant lodged a fresh request for judicial review of his provisional preventive detention. By a decision of 28 November 2011 the Regensburg Regional Court upheld the applicant’s provisional preventive detention as ordered on 6 May 2011. On 2 January 2012 the Nuremberg Court of Appeal dismissed the applicant’s appeal against that decision.
28.  In the resumed proceedings before the Regensburg Regional Court following the remittal of the case to it (see paragraph 15 above), the applicant lodged a motion against Judge P. for bias. The latter had been a member of the bench of the Regensburg Regional Court which had ordered the applicant’s subsequent preventive detention on 22 June 2009 (see paragraph 14 above). The applicant alleged that Judge P. had remarked to the applicant’s female defence counsel on 22 June 2009, immediately after the delivery of the Regional Court’s judgment ordering the applicant’s subsequent preventive detention, in reference to the applicant: “Be careful that after he is released, you don’t find him standing in front of your door waiting to thank you.” He claimed that the remark had been made in the course of a discussion in camera between the judges of the Regional Court and the applicant’s two lawyers concerning the applicant’s possible transfer to a psychiatric hospital following the Regional Court’s judgment.
29.  In a comment of 13 December 2011 on the applicant’s motion for bias, Judge P. explained that he remembered having had a discussion about the applicant’s possible transfer to a psychiatric hospital at a later stage, after the delivery of the judgment. However, given the length of time that had elapsed, he neither recalled the precise contents of the discussion nor the exact context in which he had allegedly made the impugned remark.
30.  On 2 January 2012 the Regensburg Regional Court dismissed the motion for bias lodged by the applicant. The court considered in particular that, even assuming that the applicant had established to the satisfaction of the court that Judge P. had made the remark in question, there were no objectively justified doubts as to P.’s impartiality as a result thereof. Even assuming that the applicant could reasonably consider the sense of the words “thank you” in the above context as meaning that the applicant could commit a violent offence, it had to be noted that the Regional Court, including Judge P., had just established that the applicant still suffered from fantasies of sexual violence and that there was at that time a high risk that he would again commit serious offences against the life and sexual self‑determination of others. Assuming that Judge P. had indeed made the remark in question, his “advice” had therefore constituted in substance nothing more than the application of the Regional Court’s said findings to a particular case. The remark had further been made in the context of a confidential exchange between the participants in the proceedings in the absence of the applicant. Judge P. could have expected that the applicant’s female counsel would interpret his remark in the above-mentioned manner within that context.
31.  Furthermore, Judge P.’s remark had reflected his view as it had been on the day of the Regional Court’s judgment of 22 June 2009. It did not suggest in any way that Judge P. had not been ready to take an impartial decision in the present proceedings, more than two years after the impugned remark and following the conclusion of a new main hearing. The fact that Judge P. had previously dealt with the applicant’s case did not in itself render him biased.
(b)  The new order for the applicant’s subsequent preventive detention
32.  On 3 August 2012 the Regensburg Regional Court, having held hearings over twenty-four days, again ordered the applicant’s subsequent preventive detention.
33.  The Regional Court based its 164-page judgment on sections 7(2)(1) and 105(1) of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011. It considered, firstly, that a comprehensive assessment of the applicant, his offence and, in addition, his development during the execution of the sentence relating to young offenders revealed that there was a high risk that the applicant, owing to specific circumstances relating to his person or his conduct, could commit the most serious types of violent crimes and sexual offences, similar to the one he had been found guilty of, if released.
34.  The Regional Court found, secondly, that the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 85 below), namely sexual sadism. Having regard to the case-law of the Federal Court of Justice and the Federal Constitutional Court, it considered that, whereas a mere “accentuation of the personality” was not sufficient to constitute a mental disorder within the meaning of the said Act, such disorder did not have to be so serious as to exclude or diminish the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 82-83 and 88-89 below). Given that the sexual sadism from which the applicant suffered was of a serious nature and had substantially affected his development since adolescence, it amounted to a mental disorder within the meaning of the Therapy Detention Act.
35.  The Regional Court based its view on the reports of two experienced external medical experts whom it had consulted, K. and F., who were professors and doctors for psychiatry and psychotherapy at two different university hospitals. One of the experts consulted, K., was firmly convinced that the applicant continued to suffer from sexual sadism while the other expert, F., formulated his findings more cautiously, stating that it was certain that the applicant had suffered from sexual sadism in 2005 and that this disorder could not be expected to have disappeared.
36.  Having regard to the findings of these experts, as well as to those of several medical experts who had previously examined the applicant since his arrest following his offence, the Regional Court was satisfied that the applicant has had violent sexual fantasies involving the strangulation of women since the age of seventeen. He was suffering from a sexual preference disorder, namely sexual sadism, as described by the relevant tool for the classification of diseases, the International Statistical Classification of Diseases and Related Health Problems in its current version (ICD-10);[1] this disorder had caused, and been manifested in, his brutal offence, and still persisted. The court, having regard to the experts’ findings, observed that the applicant had hidden the sadistic motives behind his offence in the proceedings before the trial court in 1999, which, despite some indications of sexual deviance, had then interpreted the offence as an intended rape which had failed. The applicant, who had given diverging versions of the motive for his offence, had only admitted in 2005/2006, during his examination by a psychological and a psychiatric expert, that in his murder he had put into practice intensifying fantasies of exercising power over women by attacking their neck and by masturbating on their inanimate bodies. The applicant’s new statements concerning his fantasies were more reconcilable with the trial court’s findings as to the manner in which the offence had been carried out.
37.  The court further observed that the therapy followed by the applicant up until 2007, in particular social therapy, which both experts K. and F. had considered as appropriate treatment for his condition, had been unsuccessful. Even though the applicant appeared not to refuse further therapy as a matter of principle, he was not currently undergoing any treatment. He had, in particular, opposed the prosecution’s request to the Regensburg Regional Court in 2010/2011 to transfer him to a psychiatric hospital under Article 67a §§ 2 and 1 of the Criminal Code (see paragraph 67 below) in order to treat his condition in a different setting. He had further refused meetings aimed at establishing a new individualised therapeutic programme with reference to the pending court proceedings.
38.  In an appeal on points of law against the Regional Court’s judgment of 3 August 2012, the applicant complained of the unlawfulness of his “retrospective” preventive detention and of the fact that the judgment had been delivered with the participation of a biased judge, P.
39.  On 5 March 2013 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded.
40.  On 11 April 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the “retrospective” order for his preventive detention had infringed the prohibition on retrospective penalties under the Constitution and Article 7  § 1 of the Convention. Furthermore, that order had failed to comply with his constitutional right to liberty, with the protection of legitimate expectations in a State governed by the rule of law and with Article 5 § 1 of the Convention. He further argued that his constitutional right to a tribunal established by law had been violated because Judge P. had been biased against him.
41.  On 5 December 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 813/13).
42.  The Regensburg Regional Court subsequently reviewed the necessity of the applicant’s preventive detention at regular intervals. It decided on 18 September 2014, 2 March 2016 and 6 April 2017 that the detention had to continue because the applicant’s mental disorder and consequent dangerousness persisted. Each of the court’s review decisions was based on a fresh report by a different psychiatric expert, all the experts consulted having diagnosed the applicant with sexual sadism. The applicant is currently still in preventive detention.
43.  During the execution of his ten-year prison term (up until July 2008) the applicant was, in particular, detained in the social-therapeutic department for sexual offenders of Bayreuth Prison from 2001 to 2007, where he underwent social therapy. As the applicant failed to pursue the therapy with the requisite sincerity and motivation, the core issue of his deviant sexual fantasies could not be sufficiently addressed and the therapy was not completed successfully. In 2007 he was transferred to the social therapy for sexual offenders department of Straubing Prison, where a fresh attempt to treat him also failed owing to the applicant’s lack of motivation vis-à-vis the different therapies provided.
44.  During the execution of his first preventive detention order, issued on 22 June 2009, the applicant had objected to the prosecution’s request to transfer him to a psychiatric hospital under Article 67a §§ 2 and 1 of the Criminal Code (see paragraph 67 below) in order to consolidate further his rehabilitation by undergoing treatment in that hospital. Moreover, he had turned down proposals for a further therapeutic programme in Straubing Prison.
45.  On 7 May 2011, following the quashing of the first preventive detention order and the new order for the applicant’s provisional preventive detention, he was transferred from the wing for persons in preventive detention in Straubing Prison to a wing for persons in detention on remand. As a consequence, the applicant lost the privileges reserved for persons in preventive detention. In particular, he was no longer able to undergo any kind of therapy. On 13 September 2011 he was transferred back to, and once again detained in, the preventive detention wing of Straubing Prison until 20 June 2013, where he was offered social therapy. He rejected the proposal.
46.  Since 20 June 2013 the applicant has been detained in the newly built Straubing preventive detention centre. That institution, which is situated in a separated fenced-off compound on the premises of Straubing Prison and can house up to 84 detainees, has more staff than Straubing Prison, namely one psychiatrist, seven psychologists, one general practitioner, four nurses, seven social workers, one lawyer, one teacher, one prison inspector, forty-four general prison staff members and four administrative staff members, providing for the detainees. Inmates can stay outside their cells, which nowadays measure 15 m² (compared to some 10 m² previously) and now include a kitchen unit and a separate bathroom, between 6 a.m. and 10.30 p.m.
47.  In the Straubing preventive detention centre, inmates are provided with individualised medical and therapeutic treatment by specialised staff in accordance with an individual treatment plan. The treatment options have been considerably increased as compared to those proposed under the previous preventive detention regime in Straubing Prison. The applicant initially refused all types of therapeutic provision at that centre, including one-to-one or group social therapy, participation in an intensive treatment programme for sexual offenders, and therapy administered by an external psychiatrist. He took up one-to-one psychotherapy only after the period covered by the proceedings here at issue, from 10 June 2015 until 30 June 2017, with a psychologist from the preventive detention centre.