PROCEDURE

The case originated in an application (no. 30493/04) 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 Paul H. Schmitz (“the applicant”), on 19 August 2004.

The applicant was represented by Ms M. Bürger-Frings, a lawyer practising in Aachen. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, and by their permanent Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

The applicant alleged that his preventive detention of an indefinite duration violated his right to liberty under Article 5 § 1 of the Convention and the prohibition of retrospective punishment under Article 7 § 1 of the Convention.

On 13 March 2007 a Chamber of the Fifth Section decided to adjourn the examination of the application pending the outcome of the proceedings in the case of M. v. Germany, no. 19359/04. On 22 January 2009 the President of the Fifth Section decided to give notice of the 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 a judgment in the case of M. v. Germany (cited above) has become final. It was also decided to rule on the admissibility and merits of the 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 1959 and is currently detained in Aachen Prison.

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

Between 1974 and 1990 the applicant was convicted of sexual offences including attempted rape, sexual abuse of children, sexual assault, attempted sexual assault and dangerous assault in six judgments and spent some eleven years in prison.

On 14 February 1990 the Cologne Regional Court convicted the applicant of two counts of sexual assault. It sentenced him to five years and six months’ imprisonment and ordered his (first) preventive detention under Article 66 § 1 of the Criminal Code (see paragraphs 20-21 below). It found that in June and July 1989 the applicant, acting with full criminal responsibility, had sexually assaulted two hitchhikers whom he had taken with him in his car. Having consulted a neurological expert, it further found that owing to his criminal tendencies, it was very likely that the applicant would commit further serious sexual offences comparable to those he was found guilty of on release and was dangerous to the public. Therefore, his preventive detention was necessary.

The applicant served his prison sentence until 17 January 1995 and was then held in preventive detention until 29 March 1995, when the preventive detention order was suspended on probation and the applicant released.

On 11 November 1996 the Cologne Regional Court convicted the applicant of attempted sexual assault and falsification of a driving licence. It sentenced him to four years and nine months’ imprisonment and ordered his (second) preventive detention under Article 66 § 1 of the Criminal Code. The Regional Court found that in August 1995 the applicant, acting with full criminal responsibility, had again attempted to sexually assault a hitchhiker. He had threatened her with a gas pistol, but she had succeeded in wresting the pistol from him and making good her escape. Having regard to the facts that the applicant had begun to reoffend almost immediately after spending some seventeen years in detention and that, according to the convincing view expressed by an expert, it would take many years to rehabilitate the applicant, if ever, the court further considered its second order of preventive detention to be proportionate.

On 20 June 1997 the Bonn Regional Court revoked the suspension on probation of the applicant’s first preventive detention, ordered in the Cologne Regional Court’s judgment of 14 February 1990, as the applicant had reoffended and had not diligently continued his therapy.

The applicant served his full prison sentence imposed in the judgment of 11 November 1996 until 25 May 2000. Since 26 May 2000 the applicant has been in preventive detention in Aachen Prison as ordered both in the judgment of the Cologne Regional Court of 14 February 1990 and in the judgment of that same court of 11 November 1996.

On 5 June 2002 the Aachen Regional Court, reviewing the applicant’s preventive detention, refused to suspend his preventive detention on probation.

B. The proceedings at issue

1. The decision of the Aachen Regional Court

On 11 June 2003 the applicant requested the Aachen Regional Court to order his release from preventive detention, arguing that preventive detention violated Article 5 § 1 of the Convention.

On 23 July 2003 the Aachen Regional Court, examining the applicant’s request under Article 458 § 1 of the Code of Criminal Procedure (see paragraph 24 below), decided that his objections against the admissibility of the execution of his preventive detention were ill-founded. The applicant’s preventive detention, ordered by the Cologne Regional Court in 1996 under Article 66 of the Criminal Code, constituted lawful detention after conviction by a competent court within the meaning of Article 5 § 1 (a) of the Convention.

2. The decision of the Cologne Court of Appeal

On 10 September 2003 the Cologne Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. It added that preventive detention under Article 66 of the Criminal Code, which was to be qualified as a measure of correction and prevention and not as a penalty, neither violated the Convention nor the Basic Law. Moreover, Article 67d § 3 of the Criminal Code, in its version in force since 31 January 1998 (see paragraph 23 below), was constitutional.

3. The decision of the Federal Constitutional Court

On 15 March 2004 the Federal Constitutional Court, referring to its leading judgment of 5 February 2004 in the case of M. (file no. 2 BvR 2029/01; application no. 19359/04 to this Court), declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1838/03), in which he had complained that his preventive detention of an indefinite duration had violated Article 5 and Article 7 of the Convention.

C. Subsequent developments

On 19 July 2004, 19 July 2006 and 2 July 2008 the Aachen Regional Court, reviewing the applicant’s detention, refused to suspend the applicant’s preventive detention on probation. It considered that it could not be expected that the applicant, who refused to make a therapy with an external psychologist offered to him, would not reoffend on release.

The applicant was in his first preventive detention as ordered in the judgment of the Cologne Regional Court of 14 February 1990 until 15 March 2010. From 16 March 2010 onwards, the applicant’s preventive detention as ordered for the second time in the judgment of the Cologne Regional Court of 11 November 1996 is executed.

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 dangerous to the public (Article 66 of the Criminal Code).

In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time).

B. The duration of preventive detention

Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first placement in preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3).

Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provided that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a § 3 of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis.

Article 458 § 1 of the Code of Criminal Procedure provides that a court decision must be obtained if objections are raised to the execution of a sentence.

C. Relevant case-law of the Federal Constitutional Court

On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period (compare the provisions in paragraphs 22-23 above) and about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.

The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.

The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the most. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law. If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.

In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung). In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above).