PROCEDURE

The case originated in an application (no. 28527/08) 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 an apparently stateless person, Mr Peter Ludwig Reiner (“the applicant”), on 8 June 2008.

The applicant, who had been granted legal aid, was initially represented by Mr D. Hartmann, a lawyer practising in Cologne. 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 continuing preventive detention violated his right to liberty as provided in Article 5 § 1 of the Convention.

On 26 August 2008 the President of the Fifth Section granted the applicant’s request to give priority to his application (Rule 41 of the Rules of Court). On 11 September 2008 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1932. When lodging his application, he was detained in Aachen Prison. He currently lives in Erkelenz.

The applicant has been registered by the Aachen Pension Office as 80% disabled since 1 January 2005. This finding was based, in particular, on the applicant’s prostate disease, kidney disorder, heart disease and severe walking disability.

A. Background to the case

The applicant’s previous convictions and the order for his preventive detention

Between 1952 and 1972 the applicant was convicted of numerous offences, which, apart from one conviction for assault, were directed against the property of others. These included fraud, theft and aggravated theft, handling of stolen goods and extortion. The applicant was sentenced nine times to terms of imprisonment of between three months and four years and spent more than nine years in detention.

On 6 June 1972 the Cologne Regional Court convicted the applicant on seven counts of joint aggravated robbery. It sentenced him to thirteen years’ imprisonment and ordered his preventive detention.

The Regional Court found that the applicant had robbed seven banks between 1968 and 1970 together with one or two accomplices. In each case, he and his accomplice(s) had threatened the bank employees with loaded guns and collected between 4,450 and more than half a million German marks (DEM). Having heard evidence from a medical expert, the Regional Court could not exclude the possibility that the applicant’s criminal responsibility had been diminished at the time of the offences because of an organic brain defect.

Relying on Article 42e of the Criminal Code and Article 20a of the Criminal Code, in their versions in force before 1 April 1970, and on Article 42e of the Criminal Code, in its version in force after 1 April 1970 (see paragraphs 43-45 below), the Regional Court also ordered the applicant’s preventive detention. It observed that the applicant had twice been sentenced to terms of imprisonment of at least one year (for several acts of fraud, embezzlement, theft and burglary). In addition, he had spent more than two years in prison on two occasions and was now being sentenced to more than two years’ imprisonment for the robberies at issue. Furthermore, he had a disposition to commit serious offences and was therefore dangerous to the public. Since the age of twenty, he had committed different types of increasingly serious offences against the property of others. Through the offences committed since 1960 and the offences at issue, he had caused substantial material damage and had acted with considerable criminal energy. He did not feel like working and financed his very costly lifestyle through crime.

Previous proceedings concerning the execution of the preventive detention order

On 17 December 1980 the Krefeld Regional Court suspended on probation, with effect from 17 January 1981, the remainder of the applicant’s prison sentence and his preventive detention as ordered in the Cologne Regional Court’s judgment of 6 June 1972.

On 26 October 1984 the Krefeld Regional Court revoked the above‑mentioned suspension on probation as the applicant had committed further offences (driving without a licence on two occasions) and had refused to cooperate with his probation officer.

On 8 February 1988 the applicant was arrested and placed in detention in France. After his extradition to Germany, he served the remainder of the sentence imposed on him in the judgment of 1972. Until 19 April 1994 he then served a further prison sentence imposed on him in 1992 for three offences of fraud (obtaining credit on three occasions on false pretences) committed in 1983 and 1984, causing damage amounting to DEM 215,200.

On 2 March 1994 the Krefeld Regional Court again suspended on probation the applicant’s preventive detention ordered in the judgment of 1972 pursuant to Article 67c § 1 of the Criminal Code (see paragraph 47 below) and ordered the supervision of his conduct.

On 20 December 1999 the Hagen Regional Court revoked the suspension on probation of the applicant’s preventive detention as ordered by the Krefeld Regional Court on 2 March 1994 pursuant to Article 67g § 1 of the Criminal Code (see paragraph 48 below). It had examined the applicant, who had been represented by counsel. The court found that in 1997 the applicant had been convicted on two further counts of fraud causing damage amounting to DEM 200,000, committed in 1996 – that is, during the period of supervision of his conduct – and had been sentenced to two years and ten months’ imprisonment. Moreover, his preventive detention was necessary in view of the purpose of this measure. Despite the fact that he had repeatedly served long prison sentences, the applicant had kept committing increasingly serious offences for fifty years in order to obtain substantial amounts of money. As confirmed by the convincing report of a psychiatric and neurological expert, Sa., it was to be expected that the applicant would commit further offences against the property of others if released.

Since 26 January 2000 the applicant, having served the sentence imposed in the judgment of 1997, has been in preventive detention.

On 31 October 2000 the Hamm Court of Appeal, having consulted a further psychiatric expert, L., dismissed an appeal by the applicant against the decision of the Hagen Regional Court. It found that there was still a risk that the applicant would commit further acts of fraud causing substantial economic damage if released.

On 7 March 2002, 19 May 2004 and 19 July 2006 the Aachen Regional Court dismissed requests by the applicant to suspend on probation his preventive detention. Those decisions were confirmed on appeal by the Cologne Court of Appeal (on 11 June 2002, 13 July 2004 and 10 October 2006 respectively). In the last-mentioned decision the Court of Appeal, endorsing the reasons given by the Regional Court, notably stressed that in view of his age, the applicant was liable to commit acts of fraud rather than robberies. However, such offences equally justified his preventive detention as the applicant was still liable to commit offences causing considerable economic damage, as required by Article 66 § 1 of the Criminal Code (see paragraphs 45-46 below). This had been demonstrated by his past acts of fraud, which had caused considerable damage.

B. The proceedings at issue

1. The proceedings before the Aachen Regional Court

On 16 December 2006 the applicant, represented by counsel, requested the Regional Court to suspend on probation his preventive detention, in particular because of his poor state of health.

On 14 June 2007 the Aachen Regional Court dismissed the applicant’s request for the suspension on probation of his preventive detention as ordered by the Cologne Regional Court on 6 June 1972. It further declared that no request for review of this decision would be admissible within a one-year period (Article 67e § 3 of the Criminal Code – see paragraph 49 below).

The Regional Court found that there was no basis to expect that the applicant, if released, would not commit further serious offences (Article 67d § 2 of the Criminal Code – see paragraph 50 below). In concluding that the applicant still had to be considered dangerous, the Regional Court had regard to the decisions of the Hagen Regional Court of 20 December 1999 and of the Hamm Court of Appeal of 31 October 2000 (see paragraphs 15 and 17 above) and to the reports of the two experts these courts had consulted. It further referred to the reasoning set out in its decision of 19 July 2006 and in the Court of Appeal’s decision of 10 October 2006 (see paragraph 18 above).

It further found that it was clear from the report dated 4 January 2007 submitted by the governor of Aachen Prison, who had recommended not suspending on probation the order for the applicant’s preventive detention, that there had not been any developments on his part warranting a different conclusion. Likewise, at the hearing of his case on 2 April 2007 the applicant had again declared that he considered himself to be detained unlawfully and had kept trivialising his offences.

His personal circumstances could not lead to a different assessment either. His contacts outside prison had deteriorated as his relationship with his fiancée had ended. The applicant had subsequently insulted and threatened her.

Furthermore, the applicant’s age and his state of health did not necessitate the suspension on probation of his preventive detention. The Regional Court had regard, in this connection, to a report dated 21 February 2007 submitted by the Aachen Prison doctor. The latter had stated that the applicant suffered from prostate cancer, which was being stabilised by hormonal medication. He had had an artificial hip fitted in October 2006 without any complications. It had also been possible to treat his heart disease with medication. The likelihood of the seventy‑four‑year‑old applicant dying in the years to come was slightly increased because of his illnesses.

According to the Regional Court, it was clear from the Aachen Prison doctor’s report that the applicant’s illnesses were being treated appropriately. His state of health did not alter the prognosis as to his dangerousness. In the past, he had committed mainly non-violent offences against property. His most recent acts of fraud, in respect of which he had been convicted in 1992 and 1997, had caused substantial economic damage. Committing such offences, however, did not require particular physical fitness. Despite the applicant’s impaired state of health and his age, his continuing detention was proportionate because there was still a risk of his committing serious offences causing considerable damage.

2. The proceedings before the Cologne Court of Appeal

On 26 June 2007 the applicant, represented by counsel, lodged an appeal against the Regional Court’s decision. He claimed that in view of his poor state of health, he could no longer be considered dangerous and complained that he had not had the conditions of his detention relaxed in any way.

On 19 September 2007 the Cologne Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 14 June 2007.

Referring to the reasoning in its decision of 10 October 2006 (see paragraph 18 above), the Court of Appeal found that the applicant’s preventive detention was still necessary in view of his dangerousness (Article 67c § 1 and Article 66 § 1 of the Criminal Code – see paragraphs 47 and 45-46 below).

The court referred to a report dated 21 February 2006 by a medical expert, Sch., whom it had previously consulted. The latter had found that the applicant suffered from a personality disorder. This finding, which was still valid, was at the root of his previous offences and was the reason why he risked committing further offences if released.

The applicant’s failure to reflect on his offences had been confirmed by the governor of Aachen Prison. The latter had considered that the applicant’s personality, which was the cause for his committing offences, had not changed. As he had no family or friends outside prison, he could, if anything, be placed in a supervised residence (betreute Wohneinrichtung), but it could not be ascertained whether he was sufficiently ready to cooperate. Moreover, his social prospects in the event of his release had deteriorated as his relationship with his fiancée had ended.

Furthermore, the applicant’s age and his state of health did not call into question his continued dangerousness. There was still a risk of his committing serious acts of fraud, an offence which he was able to commit despite his illnesses.

The Court of Appeal noted that the negative prognosis as to the applicant’s future conduct could partly have been caused by misconduct on the part of the Aachen Prison management. Although it had found, in its decision of 10 October 2006, that the granting of measures relaxing the conditions of the applicant’s detention was indispensable in order to assess his personality and to encourage a change in his attitude, no such measures had been granted. The applicant’s request to that effect had been rejected with an inordinate delay. However, this did not warrant the suspension on probation of the applicant’s detention as it was in the first place his own attitude which was the reason for the negative prognosis. The prison authorities were now called upon to take reasonable measures to relax the conditions of the applicant’s detention so that his release into a supervised residence could become an option.

The Court of Appeal further found that the applicant’s continued preventive detention, which had lasted for seven years, was proportionate. The public interest in the detention of the applicant, who still risked committing serious property offences, continued to prevail over his own interest in personal liberty.

On 12 November 2007 the Cologne Court of Appeal dismissed the applicant’s objection to its decision of 19 September 2007.

3. The proceedings before the Federal Constitutional Court

On 7 October 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed that his continued preventive detention since 26 January 2000 violated his right to liberty as guaranteed by the Basic Law and Article 5 § 1 of the Convention.

On 21 January 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2124/07) as it was ill-founded. The decisions of the courts responsible for the execution of sentences had not disregarded the applicant’s constitutional rights.

The Federal Constitutional Court referred to its well-established case-law to the effect that preventive detention as such pursuant to Article 66 § 1 of the Criminal Code was constitutional. In the present case, the courts responsible for the execution of sentences had found that there was a high risk that, if released, the applicant would commit acts of fraud. Because of this risk, the courts had rightly refused to set a date for the applicant’s release despite the prison authorities’ failure to relax the conditions of his detention. The court stressed, however, that the prior relaxation of conditions of detention was not indispensable for a prisoner’s release on probation, in particular if measures to that effect had wrongly been refused. Should the prison authorities persist in refusing such measures, it was for the applicant to seek their enforcement before the courts.

The applicant’s continuing preventive detention was also not yet disproportionate. The fact that the order for his preventive detention had been made as far back as 1972, but had not been implemented until 2000, did not warrant a different conclusion because the offences he had committed in the meantime proved his persisting dangerousness. Furthermore, according to the findings of the courts responsible for the execution of sentences, the applicant’s state of health was not so poor as to render his detention disproportionate.

C. Subsequent developments

On 12 June 2008 the Hamm Court of Appeal upheld a decision of the Aachen Regional Court dated 25 March 2008 in which the latter had found that the prison authorities’ refusal to grant the applicant’s request for leave under escort was unlawful. The Court of Appeal stated that the applicant was not likely to abuse the granting of leave under escort. There were no grounds to assume that a seventy-six-year-old prisoner who was severely disabled, suffered from a walking disability and had no contacts outside prison was likely to abscond alone or with the help of others. In so far as the prison authorities had submitted that the applicant’s preventive detention had been ordered in respect of an aggravated robbery and thus a crime involving violence, the Court of Appeal stressed that the order dated from 1972 and that currently, as confirmed by a medical expert in 2006, there remained only a risk that the applicant might commit acts of fraud.

Since September 2008 the applicant has regularly been granted leave under escort.

On 8 January 2010 the Aachen Regional Court declared that the applicant’s preventive detention would end on 25 January 2010, by which date he would have spent ten years in that form of detention (Article 67d § 3 of the Criminal Code – see paragraph 51 below). It found that there was no risk that the applicant would commit serious offences resulting in considerable psychological or physical harm to the victims if released. The courts had repeatedly considered that he might commit only non-violent property offences if released. The applicant was released, accordingly, on 25 January 2010 and has been living in a residential care home in Erkelenz since then.