PROCEDURE

The case originated in an application (no. 21906/09) 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 Franz Xaver Kronfeldner (“the applicant”), on 24 April 2009.

The applicant was initially represented by Ms M. Kronfeldner, his sister, and subsequently by Mr A. Ahmed, a lawyer practising in Munich. 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 retrospective extension of his preventive detention from a period of ten years, which had been the maximum for such detention under the legal provisions applicable at the time of his offence, to an unlimited period of time violated Article 5 of the Convention.

On 22 March 2010 the President of the Fifth Section decided to give notice of the application to the Government, requested them to submit information on changes in the applicant’s detention regime and adjourned the examination of the application until the judgment in the case of M. v. Germany, no. 19359/04, had become final. It was also decided to rule on the admissibility and merits of the application 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 application at issue be resumed and granted priority to the application (Rule 41 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1958 and was in Straubing Prison until his preventive detention was declared terminated and his provisional detention in a suitable institution under the Therapy Detention Act was ordered on 28 November 2011. He is currently detained in Straubing Psychiatric Hospital.

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

Since the age of sixteen, the applicant was sentenced to terms of imprisonment several times and spent only some four years outside prison.

On 20 November 1990 the Regensburg Regional Court convicted the applicant of rape. It sentenced him to eight years’ imprisonment and ordered his placement in preventive detention pursuant to Article 66 § 1 of the Criminal Code (see paragraphs 32-33 below). The court found that in July 1989, some four months after his release from prison, the applicant had raped a woman whom he had come across in Regensburg at night.

The Regional Court had consulted a psychiatric expert, S., on the applicant’s criminal responsibility and his propensity to commit further sexual offences and endorsed his findings. The expert had found that the applicant did not suffer from a mental illness diminishing his criminal responsibility. His criminal responsibility had, however, been diminished at the time of the offence due to his prior consumption of alcohol. The court further noted that the applicant had previously been convicted, in addition to several offences against the property of others, in particular, of attempted rape committed in 1973, two counts of sexual assault committed in 1978 and rape and coercion committed in 1984. The court considered that owing to his propensity to commit serious sexual offences, the applicant was dangerous to the public.

Since 13 November 1997 the applicant, having served his full prison sentence, has been in preventive detention. Its continuation was ordered by the Amberg Regional Court on 3 November 1999 and on 26 February 2002.

On 4 March 2004 the Regensburg Regional Court again decided not to suspend the applicant’s preventive detention on probation and ordered the execution of that measure in a detoxification facility (Article 67a §§ 1 and 2, read in conjunction with Article 64 of the Criminal Code; see paragraph 37 below). The applicant was accordingly transferred from Straubing Prison to Regensburg District Clinic on 31 March 2004.

On 26 October 2005 the Regensburg Regional Court declined to suspend the applicant’s preventive detention on probation and ordered its execution in a psychiatric hospital (Article 67a §§ 1 and 2 of the Criminal Code; see paragraph 37 below). It had consulted a psychiatric expert, N., who had considered that the applicant suffered from a dissocial personality disorder since his youth and that it was very likely that he would reoffend if released. His disorder could only possibly be treated in a psychiatric hospital. The applicant was accordingly transferred to Straubing Psychiatric Hospital on 15 December 2005. On 25 October 2007 the Regensburg Regional Court prolonged the execution of the applicant’s preventive detention in a psychiatric hospital.

As the execution of his preventive detention was interrupted in order to execute another sentence of imprisonment, the applicant had served ten years in preventive detention by 11 May 2008.

B. The proceedings at issue

1. The decision of the Regensburg Regional Court

On 12 June 2008 the Regensburg Regional Court, having heard the applicant, his counsel H. and expert K. in person, decided neither to terminate the applicant’s preventive detention after expiry of a period of ten years nor to suspend it and grant probation.

The Regional Court considered that it was very likely that the applicant, if released, would commit further serious offences resulting in considerable physical or psychological harm to the victims (Article 67d § 3 of the Criminal Code; see paragraph 36 below). Having regard to the observations made by the psychiatric expert K. it had consulted and to the applicant’s previous convictions, the court took the view that the applicant’s dangerousness had not diminished. Owing to his strong propensity to commit crimes, there was a risk that he might commit further violent sexual offences, in particular rapes.

The Regional Court noted in this connection that expert K. had consulted, inter alia, the applicant’s medical files drawn up by doctors of Straubing Psychiatric Hospital. Having examined the applicant, the expert had diagnosed him with a serious dissocial personality disorder which was notably reflected in a number of sexual offences he had committed. The expert found that the applicant did not, however, suffer from a pathological sexual deviation, a psychiatric illness or a mental disorder which diminished his criminal responsibility or called for a psychiatric therapy. He noted that the psychiatric experts having examined the applicant throughout the proceedings had agreed on that point.

The Regional Court further quashed its decision of 26 October 2005 to execute the applicant’s preventive detention in a psychiatric hospital and decided to retransfer the applicant to prison in accordance with Article 67a § 3 of the Criminal Code (see paragraph 37 below). Having regard to the statements made by the psychiatric expert and by Straubing Psychiatric Hospital, it found that the reintegration into society of the applicant, who did not suffer from a psychiatric illness, could not better be furthered in that hospital. The therapy in the psychiatric hospital, in which he might become even more dangerous, had not yielded any success.

The applicant was accordingly transferred from Straubing Psychiatric Hospital to Straubing Prison on 19 June 2008.

2. The decision of the Nuremberg Court of Appeal

On 22 July 2008 the Nuremberg Court of Appeal, fully endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal as ill‑founded.

The Court of Appeal added that the reasons why the applicant’s therapy in Straubing Psychiatric Hospital had not been successful were irrelevant for the question whether there was still a risk that the applicant, if released, might commit further sexual offences. Therefore, Straubing Psychiatric Hospital had not been obliged to submit information concerning therapeutic methods contained in the medical files as requested by the applicant. Furthermore, the psychiatric expert report drawn up by expert K. was clear and conclusive and complied with the minimum standards required for such reports. The court further referred to the leading judgment dated 5 February 2004 of the Federal Constitutional Court, in which the latter had considered the retroactive extension of a convicted person’s preventive detention beyond a period of ten years to be constitutional (file no. 2 BvR 2029/01; see paragraph 36 below). It found, accordingly, that the applicant’s continued preventive detention was lawful and proportionate.

3. The decision of the Federal Constitutional Court

On 21 August 2008 the applicant, represented by counsel H., lodged a constitutional complaint with the Federal Constitutional Court. He argued that the court decisions ordering his preventive detention to continue violated his right to liberty under the Basic Law. He complained, in particular, that the psychiatric expert report on which the decisions had been based had not complied with the minimum standards to be met by such reports. Moreover, his right to a fair trial had been breached because he had not obtained information he had requested concerning the therapy in Straubing Psychiatric Hospital and because the courts had disregarded his submissions.

On 3 November 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 1921/08).

C. The conditions of the applicant’s detention during the execution of the preventive detention order in prison

From 13 November 1997 to 31 March 2004 and from 19 June 2008 onwards, the preventive detention order against the applicant has been executed in a separate wing of Straubing Prison for persons in preventive detention. Persons in preventive detention have certain privileges compared with convicted offenders serving their sentence.

In particular, at the relevant time, persons in preventive detention in Straubing Prison had more wide-ranging possibilities to occupy themselves in their spare time (one extra hour could be spent outside on non-working days; use of a kitchen and a well-equipped sports room; additional private telephone calls). They had shorter lock-up hours (some five hours less per day), more generous visiting times (up to ten hours per month) and more wide-ranging opportunities to purchase goods (six extra opportunities to buy a larger variety of goods). They further had the right to wear their own underwear and T-Shirts, use their own bed linen and bath robes, and receive more pocket money. They had bigger cells (between 8.75 and 10.3 sq. m) which they could equip with bigger TV sets and additional furniture.

The applicant was considered by the Straubing Prison authorities to be a self-confident, demanding and mistrustful person. He received regular visits from his mother, his brother and his sister and spoke to them regularly on the phone. Since July 2009 he has been working in the prison’s furniture factory. From 2002 to 2004 he participated in a discussion group in prison. Following his retransfer to Straubing Prison in June 2008 the applicant did not make any of the therapies available – notably a group or possibly individual social therapy for sexual offenders – for lack of motivation. He consistently refused the treatment offered, questioning the therapists’ expertise. He was not granted any relaxations in the execution of the preventive detention order against him for fear of abuse.

D. Subsequent developments

On 26 July 2010 the Regensburg Regional Court, having consulted psychiatric expert A., ordered the applicant’s preventive detention to continue (Article 67d § 3 of the Criminal Code).

On 24 August 2010 the Nuremberg Court of Appeal, following the applicant’s appeal, referred the case to the Federal Court of Justice for a preliminary ruling. The Court of Appeal asked the Federal Court of Justice to decide whether, having regard to this Court’s judgment of 17 December 2009 in the case of M. v. Germany, the preventive detention of persons in the applicant’s situation could exceed ten years.

On 10 November 2010 the Federal Court of Justice decided to adjourn the case pending a decision of its grand senate on the legal question at issue. It remitted the case-file to the Nuremberg Court of Appeal in order for it to review whether, applying a stricter standard of proportionality, the applicant’s preventive detention was to continue (Articles 67d and 67e of the Criminal Code; see paragraphs 34 and 36 below). The Federal Court of Justice subsequently confirmed that the criteria set up by the Federal Constitutional Court in its leading judgment of 4 May 2011 (see paragraphs 41-45 below) should be applied to the case at issue.

By decision of 12 January 2011 the Nuremberg Court of Appeal ordered expert A. to supplement his previous report. In his fresh report dated 9 March 2011 expert A. took the view that there were no concrete circumstances in the applicant’s personality or conduct which warranted the conclusion that there was a very high risk that he would commit the most serious violent or sexual offences if released. The Court of Appeal took the view that expert A.’s report was not a suitable basis for its decision. On 18 April 2011 it ordered expert L. to submit another expert report, which the latter did on 26 August 2011 and which he supplemented on 19 October 2011.

On 28 November 2011 the Nuremberg Court of Appeal quashed the decision of the Regensburg Regional Court of 26 July 2010. It declared the applicant’s preventive detention terminated with immediate effect and ordered the supervision of his conduct. It found that, having regard to the criteria set up by the Federal Constitutional Court in its judgment dated 4 May 2011 (see, in particular, paragraph 43 below), the applicant’s preventive detention was disproportionate. It had not been shown that the applicant, owing to specific circumstances, was highly likely to commit the most serious crimes of violence or sexual offences if released.

In a different set of proceedings, the Straubing Prison authorities requested the Regensburg Regional Court on 3 January 2011 to order the applicant’s placement in a suitable institution under Article 1 of the Therapy Detention Act (see paragraph 40 below). These proceedings are currently pending. On 28 November 2011 the Regensburg Regional Court ordered the applicant’s provisional detention in a suitable institution pending a decision on his placement under the Therapy Detention Act. The applicant was transferred to Straubing Psychiatric Hospital thereupon. The applicant had not previously been placed in a psychiatric hospital under section 1 of the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 39 below).

II. RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE

A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows:

A. The order of preventive detention by the sentencing court

The sentencing court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code).

In particular, the sentencing court 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).

B. Judicial review and duration of preventive detention

Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied or whether it should be declared terminated. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time‑limit is two years (paragraph 2 of Article 67e).

Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of 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, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the offender’s conduct. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a (3) of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis. These provisions were initially considered compatible with the Basic Law by the Federal Constitutional Court in its leading judgment of 5 February 2004 (file no. 2 BvR 2029/01; the decision at issue in the case of M. v. Germany, cited above, §§ 27-40). That case-law was subsequently reversed (see paragraphs 41-45 below).

C. Transfer for enforcement of a different measure of correction and prevention

Article 67a of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, of the Criminal Code, the court may subsequently transfer a person against whom preventive detention was ordered to a psychiatric hospital or to a detoxification facility (see Article 64 of the Criminal Code) if the person’s reintegration into society can be better promoted thereby. The court may quash that decision if it later emerges that no success can be achieved by placing the person in a psychiatric hospital or a detoxification facility (Article 67a § 3). The duration of the placement is determined by the provisions which apply to the measure ordered in the judgment (Article 67a § 4).

D. The detention of mentally ill persons

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

Secondly, pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (Bavarian (Mentally Ill Persons’) Placement Act – Bayerisches Gesetz über die Unterbringung psychisch Kranker und deren Betreuung) a court may order a person’s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order. Such an order may only be executed as long as no measure under Article 63 of the Criminal Code has been taken (section 1 § 2 of the said Act).

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

E. Recent case-law of the Federal Constitutional Court 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 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. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.

The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the 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 within the meaning of section 1 § 1 of the Therapy Detention Act (see paragraph 40 above). As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.

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

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