CASE OF ILNSEHER v. GERMANY

1. The case originated in two applications (nos. 10211/12 and 27505/14) 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 Daniel Ilnseher (“the applicant”), on 24 February 2012 and 4 April 2014 respectively.
2. The applicant, who had been granted legal aid in connection with the presentation of both applications, was initially represented in application no. 10211/12 by Mr A. Ahmed, a lawyer practising in Munich, and subsequently in both applications by Mr I.-J. Tegebauer, a lawyer practising in Trier. The German Government (“the Government”) were represented by theirs Agents, Ms A. Wittling-Vogel, Mr H.-J. Behrens and Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection.
3. The applicant alleged, in particular, that his “retrospective” preventive detention ( nachträgliche Sicherungsverwahrung; see for the terminology also paragraphs 104-106 and 157 below) – at issue, ordered in the main proceedings, had violated Article 5 § 1 and Article 7 § 1 of the Convention. Relying on Article 6 § 1 of the Convention, he further complained that the domestic courts had not decided speedily on the lawfulness of his provisional preventive detention, and that Judge P. had been biased against him in the main proceedings concerning the order for his “retrospective” preventive detention.
4. The applications were allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 26 November 2013 the Government were given notice of application no. 10211/12. On 22 December 2014 the complaints concerning the order for the applicant’s subsequent preventive detention and the complaint about the partiality of Judge P. made in application no. 27505/14 were communicated to the Government, and the remainder of that application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. On 2 February 2017 a Chamber of the Fifth Section composed of Erik Møse, President, Angelika Nußberger, Ganna Yudkivska, Faris Vehabović, Yonko Grozev, Síofra O’Leary and Mārtiņš Mits, judges, and Milan Blaško, Deputy Section Registrar, unanimously decided to join the applications. It struck part of the applications out of its list of cases following the Government’s unilateral declaration under Articles 5 and 7 § 1 of the Convention relating to the applicant’s preventive detention from 6 May 2011 to 20 June 2013, and declared the remainder of the applications admissible. It further held, unanimously, that there had been no violation of Article 5 § 1 of the Convention and no violation of Article 7 § 1 of the Convention on account of the applicant’s preventive detention from 20 June 2013 onwards. Moreover, it unanimously held that there had been no violation of Article 5 § 4 of the Convention on account of the duration of the proceedings for review of the applicant’s provisional preventive detention and no violation of Article 6 § 1 of the Convention on account of the alleged lack of impartiality of Judge P. in the main proceedings resulting in a new preventive detention order against the applicant.
6. On 15 March 2017 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73 of the Rules of Court. On 29 May 2017 the Panel of the Grand Chamber accepted that request.
7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. At the first deliberations, Stéphanie Mourou-Vikström, substitute judge, replaced Işıl Karakaş, who was unable to take part in the further consideration of the case (Rule 24 § 3).
8. The applicant and the Government each filed a memorial on the merits (Rule 59 § 1). In addition, third-party comments were received from the European Prison Litigation Network, which had been granted leave by the President on 30 August 2017 to intervene in the written proceedings (Article 36 § 2 of the Convention and Rule 44 §§ 3 and 4).
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 29 November 2017 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMs A. Wittling-Vogel, Federal Ministry of Justice and Consumer Protection, Ms K. Behr, Federal Ministry of Justice and Consumer Protection, Agents, Mr T. Giegerich, Professor of EU Law, Public International Law and Public Law, University of Saarland, Counsel, Ms P. Viebig-Ehlert, Federal Ministry of Justice and Consumer Protection, Ms K. Müller, Chair of EU Law, Public International Law and Public Law, University of Saarland, Mr B. Bösert, Federal Ministry of Justice and Consumer Protection, Mr C.-S. Haase, Federal Ministry of Justice and Consumer Protection, Ms S. Bender, Bavarian Ministry of Justice, Mr A. Stegmann, Bavarian Ministry of Justice, Advisers;
(b) for the applicantMr I.-J. Tegebauer, lawyer, Mr M. Mavany, Counsel, Ms D. Thörnich, Adviser.
The Court heard addresses by Mr Tegebauer, Mr Mavany and Mr Giegerich and their replies to questions put by judges.
I. THE CIRCUMSTANCES OF THE CASE
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”).
A. Background to the case: the applicant’s conviction and the first order for his subsequent preventive detention
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).
B. The proceedings at issue in application no. 10211/12 concerning the applicant’s provisional preventive detention
1. Proceedings before the Regional Court
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.
2. Proceedings before the Court of Appeal
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.
3. Proceedings before the Federal Constitutional Court
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.
C. The proceedings at issue in application no. 27505/14, concerning the main proceedings on the applicant’s subsequent preventive detention
1. Proceedings before the Regensburg Regional Court
(a) Decision on the applicant’s motion for bias
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.
2. Proceedings before the Federal Court of Justice
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.
3. Proceedings before the Federal Constitutional Court
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.
E. The conditions of the applicant’s detention prior to and during the execution of the preventive detention order
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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. General legal framework of the preventive detention regime
48. In accordance with a long-standing legal tradition, the German Criminal Code distinguishes between penalties ( Strafen ) and so-called measures of correction and prevention ( Maßregeln der Besserung und Sicherung ) to deal with unlawful acts. In this twin-track system of sanctions, penalties (see Articles 38 et seq. of the Criminal Code) mainly consist of prison sentences and fines, which are fixed in accordance with the defendant’s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code), in a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Articles 66 et seq. of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders and to protect the public from them. They may be imposed on criminally liable offenders in addition to their punishment (cf. Articles 63 et seq.). Such measures must, however, be proportionate to the seriousness of the offences committed, or expected to be committed, by the defendants, as well as to their dangerousness (Article 62 of the Criminal Code).
49. Preventive detention can be ordered under German law against persons who have committed a criminal offence while acting with full criminal responsibility or with diminished criminal responsibility (see Articles 66 et seq. of the Criminal Code). Initially, a preventive detention order could only be made by a criminal court at the time of the defendant’s conviction, additionally to a term of imprisonment. Under Article 66 of the Criminal Code, this required, in particular, that the criminal court had convicted the defendant of an offence of a certain gravity (as specified in the law) and that, owing to his propensity to commit serious offences, the defendant presented a danger to the general public. Under the law in force prior to 31 January 1998 (Article 67d § 1 of the Criminal Code), the first period of preventive detention executed against a defendant could not exceed ten years. Following a change in the law, that maximum duration was abolished with immediate effect (see, for further details, M. v. Germany, no. 19359/04, §§ 49-54, ECHR 2009).
50. In 2004, a new Article 66b was inserted into the Criminal Code authorising the imposition of subsequent preventive detention on adult offenders. Preventive detention could from then on be imposed also on adult offenders against whom no preventive detention had been ordered by the trial court having found them guilty of certain serious offences. Such orders could be made separately and subsequently, after the trial court’s judgment, if, before the end of enforcement of a term of imprisonment, evidence came to light which indicated that the detainee concerned posed a significant danger to the general public. By a law which entered into force on 1 January 2011, the legislature substantially restricted the conditions under which preventive detention could be ordered subsequently (see for more details B. v. Germany, no. 61272/09, §§ 33-35, 19 April 2012).
51. In 2008 section 7(2) of the Juvenile Courts Act – the provision at issue in the present case – entered into force, authorising the imposition of subsequent preventive detention also on young offenders (see in more detail paragraphs 54-58 below).
52. In addition to the above-mentioned more recent reforms of the preventive detention regime in 1998, 2004 and 2008, further legislative amendments were made following this Court’s judgment in the case of M. v. Germany (cited above) of 17 December 2009 and the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 68-75 below). These were brought about, in particular, by the adoption of the Reform of Preventive Detention Act ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of 22 December 2010, which included the new Therapy Detention Act (see paragraphs 85-89 below) and entered into force on 1 January 2011, and by the Preventive Detention (Distinction) Act, which entered into force on 1 June 2013 (see paragraphs 78 et seq. below).
53. As regards the procedure for the execution of measures of correction and prevention in general, Article 463 § 1 of the Code of Criminal Procedure stipulates that the provisions on the execution of terms of imprisonment shall apply mutatis mutandis on the execution of measures of correction and prevention, unless provided otherwise.
B. Preventive detention orders against juveniles and young adults
1. The order for a young offender’s subsequent preventive detention
54. Initially, the Juvenile Courts Act did not authorise orders for preventive detention in respect of juveniles (persons aged between fourteen and eighteen) or young adults aged between eighteen and twenty-one (see section 1[2] of the Juvenile Courts Act) to whom the criminal law relating to young offenders was applied. Since 29 July 2004, following a change to section 106 of the Juvenile Court Act, subsequent preventive detention could be ordered against young adults aged between eighteen and twenty-one who were convicted under the ordinary criminal law for adult offenders.
55. Under the Act on the introduction of subsequent preventive detention for convictions under the criminal law relating to young offenders ( Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht ) of 8 July 2008, which came into force on 12 July 2008, section 7(2) was inserted into the Juvenile Courts Act.
56. The wording of section 7(2) of the Juvenile Courts Act, as in force up until 31 May 2013, provided:
“If, following the imposition of a sentence applicable to young offenders of at least seven years for ... a felony
1. against life, physical integrity or sexual self-determination, or
through which the victim either suffered grave mental or physical damage or was exposed to the risk of suffering such damage, there is evidence prior to the end of the sentence ... indicating that the convicted person poses a significant danger to the general public, the court may order preventive detention subsequently if a comprehensive assessment of the convicted person, his offence or offences and, on a supplementary basis, his development during the serving of the sentence ... determines that it is very likely that he will again commit offences of the nature described above.”
57. The Federal Government, when submitting the draft Act on the introduction of subsequent preventive detention for convictions under the criminal law relating to young offenders to Parliament (see Publication of the Federal Parliament ( Bundestagsdrucksache ) no. 16/6562, p. 1), had argued that recent examples had shown that, like adult offenders, young offenders sentenced under the Juvenile Courts Act could, in exceptional cases, prove to be very dangerous to others even after having served a term of imprisonment of several years. Where young offenders could not be placed in a psychiatric hospital, there was, at that time, no legal basis for remanding them in detention as necessary for the protection of the public.
58. Under the Preventive Detention (Distinction) Act, which entered into force on 1 June 2013 (see, for further details, paragraphs 76 et seq. below), the legislature substantially restricted the conditions under which preventive detention could be ordered subsequently against young offenders.
59. Section 105(1) of the Juvenile Courts Act provides that the court shall apply certain provisions of that Act relating to juveniles, particularly section 7 thereof, if a young adult aged between eighteen and twenty-one commits an offence and if, in particular, a comprehensive assessment of the perpetrator’s personality, taking into account his living environment, has shown that the perpetrator only had the moral and intellectual development of a juvenile at the time of his offence.
60. Section 43(2) of the Juvenile Courts Act provides that in criminal proceedings against young offenders, an expert qualified to examine juveniles should, if possible, be charged with carrying out necessary examinations of the offender.
2. Provisional preventive detention and judicial review thereof
61. While proceedings concerning a young offender’s subsequent preventive detention are pending, a court may order the person’s provisional preventive detention (until the relevant judgment on subsequent preventive detention becomes final) if there are weighty reasons to expect that that person’s subsequent preventive detention will be ordered (see section 7(4) of the Juvenile Courts Act, read in conjunction with Article 275a § 5, first sentence, of the Code of Criminal Procedure, in the wording in force at the relevant time under the applicable transitional provision).
62. Under Articles 304 § 1 and 305 of the Code of Criminal Procedure there is a possibility (which is not subject to any time-limit) of lodging an appeal with the Court of Appeal against a provisional preventive detention order from a Regional Court; under Article 310 of the Code of Criminal Procedure no further appeal lies before the ordinary courts against the Court of Appeal’s decision.
63. However, a detainee may lodge a fresh request for judicial review of his detention with the competent Regional Court in accordance with Articles 117 et seq. of the Code of Criminal Procedure read in conjunction with Article 275a § 5, fourth sentence, of the Code of Criminal Procedure following the Court of Appeal’s decision. A further appeal lies against the Regional Court’s judicial review decision (Articles 304 et seq. of the Code of Criminal Procedure) with the Court of Appeal.
3. Judicial review of subsequent preventive detention and duration thereof
64. Under section 7(4) of the Juvenile Courts Act, in the wording in force up until 31 May 2013, read in conjunction with Article 67e of the Criminal Code, the courts were obliged to examine at yearly intervals whether a particular preventive detention order under section 7(2) of the Juvenile Courts Act might be terminated or suspended and a measure of probation applied. In its judgment of 4 May 2011 (see paragraphs 68-75 below), the Federal Constitutional Court ordered that this time-limit be reduced from one year to six months.
65. Since 1 June 2013, under Article 67d § 2 of the Criminal Code, read in conjunction with section 316f(2) and (3) of the Introductory Act to the Criminal Code, courts have been able to order subsequent preventive detention to continue only if the person concerned suffers from a mental disorder and if, owing to specific circumstances relating to his personality or his conduct, there is a high risk that he will commit the most serious types of violent crimes or sexual offences as a result of that disorder. If these criteria are not met, the court will suspend on probation further enforcement of the detention order and order the supervision of the person’s conduct.
66. Since 1 June 2013, Article 67d § 2 of the Criminal Code has additionally provided that the court will also suspend on probation the further enforcement of the detention order if it finds that the continuation of the detention would be disproportionate because the person concerned had not been provided, within a maximum six-month time-limit fixed by the court, with sufficient care within the meaning of Article 66c § 1 sub ‑ paragraph 1 of the Criminal Code (see paragraphs 79 ‑ 80 below). If sufficient care has not been provided, it is for the court to fix that time-limit when it reviews the continuation of the detention and to specify the measures which have to be offered. Suspension of the detention automatically entails supervision of the conduct of the person concerned.
4. Transfer for implementation of a different measure of correction and prevention
67. Article 67a of the Criminal Code contains provisions on the transfer of detainees for the implementation of a measure of correction and prevention different from the measure originally ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, a court may subsequently transfer a person in respect of whom preventive detention has been ordered to a psychiatric hospital or detoxification facility if the person’s reintegration into society can thereby be better promoted.
C. The Federal Constitutional Court’s judgment of 4 May 2011 and the ensuing amendments to the German preventive detention regime
1. The Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011
68. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment on preventive detention following constitutional complaints both of detainees remanded in preventive detention which had been prolonged subsequently beyond the former ten-year maximum period and of detainees – including the applicant in the present case – remanded in subsequently ordered preventive detention under Article 66b § 2 of the Criminal Code or section 7 (2) of the Juvenile Courts Act (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10).
69. The Federal Constitutional Court’s judgment was adopted after this Court had, on 17 December 2009, delivered a leading judgment in the case of M. v. Germany (cited above) in which it had held that the subsequent extension of Mr M.’s preventive detention beyond the former statutory maximum period of ten years applicable at the time of that applicant’s offence and conviction had breached both Article 5 § 1 and Article 7 § 1 of the Convention.
70. The Federal Constitutional Court, reversing its previous position adopted notably in its judgment of 5 February 2004 (file no. 2 BvR 2029/01), held that all provisions concerned by the constitutional complaints, both on the subsequent prolongation of preventive detention and on the subsequent ordering 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.
71. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of differentiating between preventive detention and imprisonment ( Abstandsgebot ).
72. The Federal Constitutional Court held 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 latest, under additional restrictive conditions. In relation to detainees whose preventive detention had been prolonged subsequently, or ordered subsequently under Article 66b § 2 of the Criminal Code or section 7(2) of the Juvenile Courts Act, the courts responsible for the execution of sentences had to examine without delay whether there was a high risk that the persons concerned, owing to specific circumstances relating to their personality or their conduct, would commit the most serious types of violent crimes or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1(1) of the newly enacted Therapy Detention Act (see paragraph 85 below). 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 143-56 of the Federal Constitutional Court’s judgment). If the above preconditions 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 applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.
73. 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 et seq. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement to differentiate between preventive detention and imprisonment and the principles laid down in Article 7 of the Convention required individualised and intensified therapeutic provision and care for 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 provide the detainees with individualised therapy if the standard therapies available in the institution had no prospects of success (see paragraph 113 of the Federal Constitutional Court’s judgment).
74. The Federal Constitutional Court confirmed its constant case-law that the absolute ban on the retrospective application of criminal law under Article 103 § 2 of the Basic Law did not cover preventive detention. The latter was a measure of correction and prevention, which was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender (see paragraphs 100-101 and 141-42 of the Federal Constitutional Court’s judgment). The Federal Constitutional Court noted that the European Court of Human Rights had considered preventive detention to be a penalty within the meaning of Article 7 § 1 of the Convention (ibid., paragraphs 102 and 140). It considered that it was not necessary schematically to align the meaning of the constitutional notion of penalty with that under the Convention. Recourse should rather be had to the value judgments ( Wertungen ) under the Convention in a result-oriented manner in order to prevent breaches of public international law (ibid., paragraphs 91 and 141 et seq.).
75. Taking account of the constitutional right to protection of legitimate expectations in a State governed by the rule of law and the value judgments of Article 5 of the Convention, the prolongation of preventive detention beyond the former ten-year maximum period or the subsequent ordering of such detention was only constitutional in practice if, inter alia, the requirements of Article 5 § 1 (e) were met (ibid., paragraphs 143 and 151 ‑ 56). The Federal Constitutional Court expressly referred in that context to the case-law of the European Court of Human Rights, according to which the detention of a person as a mental-health patient would only be lawful for the purposes of Article 5 § 1 (e) of the Convention if effected in a hospital, clinic or other appropriate institution (ibid., paragraph 155).
2. Implementation in practice of the Federal Constitutional Court’s judgment
76. Having regard to the requirements laid down in the Federal Constitutional Court’s judgment of 4 May 2011, the legislature adopted the Act on the establishment, at federal level, of a difference between the provisions on preventive detention and those on prison sentences ( Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung, hereinafter the “Preventive Detention (Distinction) Act”) of 5 December 2012, which entered into force on 1 June 2013.
77. At the same time, the different German Länder adopted Acts reforming the implementation of preventive detention. These Acts contain detailed rules on the execution in practice of the new preventive detention regime, which should focus on therapeutic provision for detainees and be adapted to the general living conditions as far as possible (see, for the Land of Bavaria, where the applicant is being detained, the Bavarian Preventive Detention Execution Act – Bayerisches Sicherungsverwahrungsvollzugs-gesetz / Gesetz über den Vollzug der Sicherungsverwahrung und der Therapieunterbringung –, and in particular sections 2 and 3 thereof, of 22 May 2013, which entered into force on 1 June 2013; the Act contains a total of 105 sections).
78. Under the new legislation (see, in particular, Article 66c of the Criminal Code), persons in preventive detention must now be detained in institutions offering them not only conditions more assimilated to general living conditions but, in particular, individual and intensive care for enhancing their willingness to participate in psychiatric, psychotherapeutic or socio-therapeutic treatment tailored to their needs.
79. Article 66c of the Criminal Code, on the manner in which preventive detention and prior terms of imprisonment are implemented, in so far as relevant, provides as follows:
“1. Detainees held in preventive detention are placed in institutions which
(1) offer the detainee, on the basis of a comprehensive examination and a personal treatment plan which is to be updated regularly, care that is
(a) individual and intensive as well as suitable for raising and furthering his readiness to participate, in particular psychiatric, psychotherapeutic or socio-therapeutic treatment, tailored to the detainee’s needs if standardised offers do not have prospects of success, and
(b) aimed at reducing the threat he poses to the public to such an extent that the measure may be suspended and probation granted or that it may be terminated as soon as possible,
(2) guarantee a form of detention that
(a) places as small a burden as possible on the detainee, complies with the requirements for care under sub-paragraph 1 and is assimilated to general living conditions in so far as security concerns allow, and
(b) is separate from detainees serving terms of imprisonment in special buildings or departments in so far as the treatment within the meaning of sub-paragraph 1 does not exceptionally require otherwise, and
(3) in order to attain the aim laid down in sub-paragraph 1 (b)
(a) grant relaxations in the enforcement of the detention and make preparations for release unless there are compelling reasons not to do so, in particular if there are concrete facts constituting a risk that the detainee might abscond or abuse the relaxations in order to commit considerable offences, and
(b) allow for follow-up care once at liberty in close cooperation with public or private institutions.”
80. Under a transitional provision, section 316f(3) of the Introductory Act to the Criminal Code, the new Article 66c of the Criminal Code is also applicable to persons who committed the offence(s) with regard to which preventive detention was ordered prior to 1 June 2013.
81. In accordance with this judicial and legislative framework, new centres for persons in preventive detention have been constructed, equipped and staffed in the Länder in order to comply with the requirements of establishing a difference between the execution of preventive detention and that of prison sentences and of focusing on the therapy of the detainees. According to the material provided by the Government, which has not been contested by the applicant, twelve new preventive detention centres were built and/or equipped in the different Länder, at total costs exceeding 200 million euros. The detainees are placed in cells (measuring between 14 and 25 m²) which are larger than prison cells and usually include a kitchen unit and a separate bathroom, and may move more freely within the respective centres, which comprise further rooms and outside spaces for therapy, occupational and recreational activities. They may wear their own clothes. In the centres, detainees are, in particular, provided with individualised comprehensive and interdisciplinary therapies, which have been extended as compared to the previous preventive detention regime, including psychotherapeutic conversations aimed at motivating detainees to pursue therapy, offence-specific therapies for violent and sexual offenders and social training courses, either as an individual or a group measure and partly involving external therapists if necessary. New therapeutic staff members were employed in all centres to provide the requisite therapies.
D. Criminal liability and detention of persons with mental disorders
1. Provisions on criminal liability
82. Article 20 of the Criminal Code contains rules on lack of criminal responsibility owing to mental disorders. It provides that a person who, upon commission of an act, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality, acts without guilt.
83. Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that punishment may be mitigated if the perpetrator’s capacity to appreciate the wrongfulness of the act or to act in accordance with such appreciation was substantially diminished upon commission of the act owing to one of the reasons indicated in Article 20 of the Criminal Code.
2. Detention of persons with mental disorders
(a) Detention under Article 63 of the Criminal Code
84. The detention of mentally ill persons is provided for, primarily, 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 (Article 20) or with diminished criminal responsibility (Article 21), the court will order his placement – without any maximum duration – in a psychiatric hospital. A comprehensive assessment of the defendant and his acts must have revealed that, as a result of his condition, he is likely to commit further serious unlawful acts and that he is therefore a danger to the general public.
(b) Detention under the Therapy Detention Act
85. 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 ( Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter, the “Therapy Detention Act”) 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 on subsequent aggravations in relation to preventive detention. Such detention for therapy 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 also be suffering from a mental disorder as a result of which it is highly likely that, if at liberty, the person would considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be deemed necessary for the protection of the public.
86. Under section 2(1) of the Therapy Detention Act, institutions suitable for “therapy detention” are only those that can guarantee, by means of medical care and therapeutic provision, adequate treatment of the mental disorder of the person concerned on the basis of an individualised treatment plan aimed at keeping the confinement to a minimum duration (point [1]). Furthermore, the institutions concerned must allow detention to be effected in the least burdensome manner possible for the detainee, taking into account therapeutic aspects and the interests of public security (point [2]). They must be separated, geographically and organisationally, from institutions in which terms of imprisonment are enforced (point [3]). Under section 2(2) of the Therapy Detention Act, as in force since 1 June 2013, institutions within the meaning of Article 66c § 1 of the Criminal Code are also suitable for therapy detention if they comply with the requirements of section 2(1) points (1) and (2) of that Act.
87. The Federal Constitutional Court interpreted the Therapy Detention Act restrictively, holding that detention under that Act was only possible under the same restrictive conditions under which preventive detention could be ordered or prolonged subsequently (see that court’s decision of 11 July 2013, file nos. 2 BvR 2302/11 and 2 BvR 1279/12, summarised in the case of Bergmann v. Germany, no. 23279/14, §§ 75-76, 7 January 2016; and paragraph 72 above). Detention under that Act only rarely occurred in practice.
88. As for the interpretation of the notion of “mental disorder” in section 1(1) of the Therapy Detention Act, the Federal Constitutional Court found that in view of the standards flowing from Article 5 § 1 (e) of the Convention, that notion did not require that the disorder was so serious as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see file no. 2 BvR 1516/11, decision of 15 September 2011, paragraphs 35-36; and file nos. 2 BvR 2302/11 and 2 BvR 1279/12, cited above).
89. According to the Federal Constitutional Court, specific disorders affecting a person’s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1(1) of the Therapy Detention Act. This notion therefore was not limited to mental illnesses which could be treated clinically, but could extend also to dissocial personality disorders of sufficient severity (see file no. 2 BvR 1516/11, cited above, paragraphs 35-40). In line with this Court’s case-law relating to Article 5 § 1 (e) (the court referred, in particular, to Kronfeldner v. Germany, no. 21906/09, 19 January 2012, and B. v. Germany, cited above) the Federal Constitutional Court found that the detention of a person for being of unsound mind could be justified provided that the detention was effected in an appropriate psychiatric institution, which, in turn, required the mental disorder to be of corresponding intensity (see file nos. 2 BvR 2302/11 and 2 BvR 1279/12, cited above).
(c) Detention under public safety legislation of the Länder
90. Under the Länder legislation relating to public safety and risk prevention, such as the Bavarian Act on the placement in an institution of, and care for, mentally ill persons (Bavarian (Mentally Ill Persons’) Placement Act – Gesetz über die Unterbringung psychisch Kranker und deren Betreuung ) of 5 April 1992, the civil courts 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 or suffers from a mental disorder resulting from an intellectual impairment or addiction and thereby poses a severe threat to public security and order (see sections 1(1), 5 and 7(3) of the Act, read in conjunction with sections 312 point 4 and 313(3) of the Act on proceedings in family matters and matters of non-contentious jurisdiction – Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit ). Such an order may only be executed if no measure under Article 63 of the Criminal Code has been taken (section 1(2) of the said Act).
91. According to statistical material submitted by the Government, which was not contested by the applicant, on 10 May 2010, when the judgment in the case of M. v. Germany (cited above) became final, 102 persons were in subsequently prolonged preventive detention. On 31 March 2017 a total of 51,129 persons were serving a prison sentence in the whole German territory (with a population of some 81 million), and 591 persons were in preventive detention. 41 of the 591 persons in preventive detention were in subsequently ordered or prolonged preventive detention.
92. As regards the number of persons against whom long terms of imprisonment and preventive detention orders are being executed, according to the Council of Europe Annual Penal Statistics (SPACE I) for 2015, in Germany 2,471 persons were serving prison terms of 10 years or more, whereas 7,603 (figure available for 2014 only) were doing so in France, 9,747 in Italy, 12,012 in Spain and 16,511 in the United Kingdom (see document PC-CP (2016) 6, pp. 87-88, table 7; and SPACE I for 2014, document PC-CP (2015) 7, p. 90, table 7). In addition, 521 persons were under security measures or preventive detention orders in Germany and 540 in Italy (see SPACE I for 2015, document PC-CP (2016) 6, p. 78, table 5.2).
III. RELEVANT INTERNATIONAL LAW MATERIAL
1. United Nations Human Rights Committee
93. The United Nations Human Rights Committee, in its Concluding observations on the sixth periodic report of Germany, adopted by the Committee at its 106th session (15 October - 2 November 2012, CCPR/C/DEU/CO/6), found the following:
“14. While welcoming the steps taken by the State party to revise its legislation and practice on post-conviction preventive detention in accordance with human rights standards and noting information that a draft bill addressing the issue is currently before parliament, the Committee is concerned about the number of persons who are still detained in such detention in the State party. It is also concerned about the duration of such a detention in some cases as well as the fact that conditions of detention have not been in line with human rights requirements in the past (arts. 9 and 10).
The State party should take necessary measures to use the post-conviction preventive detention as a measure of last resort and create detention conditions for detainees, which are distinct from the treatment of convicted prisoners serving their sentence and only aimed at their rehabilitation and reintegration into society. The State party should include in the Bill under consideration, all legal guarantees to preserve the rights of those detained, including periodic psychological assessment of their situation which can result in their release or the shortening of the period of their detention.”
2. United Nations Committee against Torture (CAT)
94. The United Nations Committee against Torture, in its Concluding observations on the fifth periodic report of Germany adopted at the forty ‑ seventh session (31 October - 25 November 2011) (CAT/C/DEU/CO/5 of 12 December 2011) found as follows:
17. The Committee takes note of the judgement of the Federal Constitutional Court of 4 May 2011 which has considered that all provisions of the Criminal Code and the Youth Courts Act on the imposition and duration of preventive detention are unconstitutional and welcomes the fact that the federal and Länder authorities have already started to implement the ruling. The Committee nonetheless notes with regret the information that more than 500 persons remain in preventive detention, some of them having been in preventive detention for more than twenty years (arts. 2 and 11).
The Committee urges the State party to:
(a) Adapt and amend its laws on the basis of the Federal Constitutional Court’s decision by 31 March 2013, as requested by the Court, in order to minimize the risks arising from preventive detention; and
(b) Take all necessary actions, in the meantime, to comply with the institutional measures requested by the Court’s decision, in particular with regard to release of persons in preventive detention, reduction of its duration and the imposition thereof, and take into account the provisions of the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) when devising the measures alternative to preventive detention.”
3. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
95. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) found as follows in its Report to the German Government on the visit to Germany carried out from 20 November to 2 December 2005 (CPT/Inf (2007) 18, 18 April 2007) in respect of the unit for preventive detention in Berlin-Tegel Prison:
99. Even for the other inmates who were apparently coping better with their situation, the lack of staff engagement on the unit was not justifiable. (...) The delegation gained the distinct impression that the staff themselves were not clear as to how to approach their work with these inmates. As well as empowering inmates to take charge of their lives in custody, there is a need for on-going support to deal with indefinite detention, as well as to address the legacy of serious past histories of aberrant behaviour and apparent psychological problems. Psychological care and support appeared to be seriously inadequate; the CPT recommends that immediate steps be taken to remedy this shortcoming.
100. The difficult question of how to implement in practice a humane and coherent policy regarding the treatment of persons placed in Sicherungsverwahrung needs to be addressed as a matter of urgency at the highest level. Working with this group of inmates is bound to be one of the hardest challenges facing prison staff.
Due to the potentially indefinite stay for the small (but growing) number of inmates held under Sicherungsverwahrung, there needs to be a particularly clear vision of the objectives in this unit and of how those objectives can be realistically achieved. The approach requires a high level of care involving a team of multi-disciplinary staff, intensive work with inmates on an individual basis (via promptly-prepared individualised plans), within a coherent framework for progression towards release, which should be a real option. The system should also allow for the maintenance of family contacts, when appropriate.
The CPT recommends that the German authorities institute an immediate review of the approach to Sicherungsverwahrung at Tegel Prison and, if appropriate, in other establishments in Germany accommodating persons subject to Sicherungsverwahrung, in the light of the above remarks.”
96. Subsequently, the CPT found as follows in its Report to the German Government on the visit to Germany carried out from 25 November to 3 December 2013 (CPT/Inf (2014) 23, 24 July 2014):
“A. Preventive detention ( Sicherungsverwahrung )
10. The purpose of the 2013 visit was to review the implementation in practice of the new system of preventive detention and the action taken by the relevant authorities in this connection since the 2010 visit. To this end, the delegation focused on the situation of persons in preventive detention in Baden-Württemberg and Rhineland-Palatinate (...).
14. As regards conditions of detention, the delegation was particularly impressed by the newly constructed unit for preventive detention at Diez Prison. All accommodation rooms were spacious (measuring some 18 m² including the sanitary annexe) and well-equipped (including ... a toilet, shower and kitchenette). (...) In addition, there were various association and activity rooms (including a fitness room). It is also praiseworthy that, during the day, inmates could move freely within the building in which the unit is located and could go outside into the open air or to another detention unit whenever they wished (throughout the day and, except at weekends, also in the evening).
15. At Freiburg Prison, material conditions were generally good in the new unit for preventive detention. All the rooms were in a very good state of repair, spacious (some 14 m² without counting the sanitary annexe) and well-equipped (...). On every floor, there was a large living/dining room (measuring some 50 m² and equipped with tables, chairs, a sofa, a television set, a refrigerator and plants), a kitchen and a laundry room. In addition, the detention unit comprised a large workshop, a computer room and an art therapy room. That said, it is somewhat regrettable that the entire detention unit remained rather prison-like and that the freedom of movement of inmates within the establishment and access to the outdoor exercise yard was more restricted than at Diez Prison (in particular, at weekends). (...)
In this regard, the CPT wishes to recall that, according to the relevant legal provisions, persons in preventive detention are in principle entitled to have unrestricted and unlimited access to the open air outside night lock-up periods. (...)
17. As regards the regime and treatment measures ( Behandlungsmassnahmen ), the delegation was informed that, at Freiburg Prison, all inmates were offered work, individual counselling sessions with a psychologist and a range of recreational activities. In addition, a number of group therapies were provided, including a treatment programme for sex offenders (10 participants, duration 1½ years), social competence training (6 participants, duration six to seven months), art therapy (5 participants), drama and movement therapy (5 participants) and a programme for control of addiction (9 participants). Out of a total of 58 inmates, 48 participated in individual counselling sessions, including 13 who were also involved in one of the above-mentioned group therapies and eleven who were involved in two treatment groups. Seven inmates refused to take part in any therapy, two were new arrivals and not assigned yet to a treatment programme and one was apparently not capable of participating in any treatment programme (due to brain damage). The team of specialised staff comprised three psychologists and four social workers (one on each floor). The delegation was informed that, based on the staff/inmate ratio applied in sociotherapeutic institutions, the unit for preventive detention would need at least six full-time psychologists. (...) The head of the psychology service indicated that, due to the limited staff resources, it was not possible to organise individual therapy on a weekly basis (...), that it was not possible to reach out to those who were lacking any motivation and were unwilling to engage themselves in therapeutic measures and that it was not possible to organise milieu therapy in an effective manner.
18. The situation appeared to be even more worrying at Diez Prison. Although a comprehensive and detailed concept for the treatment of persons in preventive detention had been prepared by the prison administration of Rhineland-Palatinate in May 2013, the visit revealed a striking discrepancy between theory and practice. Out of 40 inmates, only 24 were receiving individual therapy and only eight were participating in group therapy. It is also regrettable that no efforts had thus far been made by the prison administration to organise group sessions for art, music or drama therapy which may be particularly beneficial for those inmates who are unwilling or unable to participate in any other group therapy programme. Moreover, the delegation noted that attempts had to a large extent failed to motivate inmates to take part in weekly meetings in the living unit, which were organised by staff as part of the ongoing milieu therapy.
19. The CPT acknowledges that the implementation of the new legislation governing preventive detention was still at an early stage and that it may take some time until all the planned measures are fully implemented in practice. However, there can be no doubt that the existing resources for treatment measures for persons in preventive detention in Baden-Württemberg and Rhineland-Palatinate were insufficient to meet the requirements of the relevant federal and Länder legislation, namely to have a system of programmes focused on therapeutic needs and promoting individual liberty and motivation ( therapiegerichtet, freiheitsorientiert and motivationsfördernd). (...)
The Committee recommends that the relevant authorities of Baden-Württemberg and Rhineland-Palatinate redouble their efforts to further develop individual and group treatment measures which are offered to persons in preventive detention at Freiburg and Diez Prisons and increase the number of specialist staff accordingly.
20. The delegation gained a favourable impression of the therapeutic measures offered to inmates at (...) the socio-therapeutic department at Diez Prison, which accommodated inmates in preventive detention who were considered to be suitable to undergo an intensive therapeutic programme for violent and/or sex offenders. (...)”
4. Commissioner for Human Rights of the Council of Europe
97. The Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg, stated the following in his report of 11 July 2007 on his visit to Germany from 9 to 11 and 15 to 20 October 2006 (see CommDH(2007)14) regarding the issue of what he referred to as “secured custody”, executed in accordance with the provisions applicable at that time:
201. Under German penal law, a criminal who has committed a serious crime such as homicide or rape may be kept under secured custody ( Sicherungsverwahrung ) after having served his/her prison term. A decision on secured custody can only be taken by the court who issued the original verdict on the basis of expert medical advice. The term of custody is indefinite but subject to court review (...). The possibility of imposing secured custody can either be included in the original verdict itself or it can be ordered shortly before the prison term expires.
202. The purpose of keeping a person under secured custody has no punitive element but aims at protecting the general public from crimes the perpetrator concerned is likely to commit. Accordingly, prison conditions are adapted to the specific situation and unnecessary restrictions are not applied.
203. During the visit, the Commissioner discussed the issue of secured custody with several Länder authorities, judges and medical experts. The Commissioner is aware of the public pressure judges and medical experts are exposed to when they make decisions regarding the release of a person who might recommit a serious crime. It is impossible to predict with full certainty whether a person will actually re-offend. Psychiatrists regularly assess the behaviour of an imprisoned person who might act differently outside the prison. In addition, it is difficult to foresee all the conditions that wait for the offender outside the prison.
204. The Commissioner calls for an extremely considerate application of secured custody. Alternative measures should also be considered before recourse to secured custody is taken. The Commissioner is concerned about the rising number of people deprived of their liberty under secured custody. He encourages the German authorities to commission independent studies on the implementation of secured custody in order to evaluate the measure in terms of protecting the general public and its impact on the detained individual.
205. The Commissioner is also aware of proposed amendments which would allow the ex post imposition of secured custody on juvenile offenders in extreme cases. The Commissioner urges the German authorities to reconsider such proposals due to their extreme consequences on juvenile offenders. Alternative measures should be applied in the case of juvenile offenders whenever possible.
206. Furthermore, the Commissioner was informed that persons kept under secured custody regularly experience a loss of future perspective and give up on themselves. This would appear to call for the provision of psychological or psychiatric care. The medical opinion may occasionally be divided on the efficacy of care provided to persons kept under secured custody, yet the possibility of their eventual rehabilitation and release should not be excluded. Accordingly, people held under secured custody should receive adequate medical treatment or other care that addresses their specific situation.”
98. As regards the measures chosen by other Contracting Parties to the Convention to protect the public from convicted offenders of unsound mind who risk committing further serious offences on their release, the comparative law material before the Court shows the following. Out of the thirty-two Contracting States examined, ten allow for the application of protective measures entailing deprivation of liberty after a criminal sentence. Half of these States allow for such measures to be ordered after the imposition of the sentence. Such measures are imposed by a judicial body. In most of these States, these measures are not classified as “penalties” under domestic law. Facilities for enforcing such measures are quite varied, ranging from special detention facilities to psychiatric hospitals, psychiatric wards in prison and regular detention centres.
I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER
99. The Grand Chamber would observe at the outset that the Chamber struck the present applications out of the Court’s list of cases in so far as the applicant had complained under Articles 5 § 1 and 7 § 1 of the Convention about his preventive detention from 6 May 2011 until 20 June 2013, executed in Straubing Prison. The strike-out decision was taken under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government acknowledging a breach of the Convention in this regard because the applicant had not been detained in a suitable institution for mental health patients during the said period (see Ilnseher v. Germany, nos. 10211/12 and 27505/14, §§ 45-58, 2 February 2017; and paragraph 5 above).
100. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility (see, inter alia, K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001 ‑ VII; Göç v. Turkey [GC], no. 36590/97, §§ 36-37, ECHR 2002 ‑ V; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 83, 12 May 2017). This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 61, ECHR 2007 ‑ I; Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 78, 21 June 2016; and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 84, 24 January 2017).
101. The Court holds that the same considerations apply where, as in the present case, parts of the applications, instead of having been declared inadmissible, were struck off the Court’s list of cases prior to the Chamber’s decision on admissibility in this respect. Those parts of the applications are consequently not part of the “case” referred to the Grand Chamber.
102. The Court would note that this is in no way contested by the parties. The applicant relied on the Government’s unilateral declaration in support of his submissions (see paragraph 114 below). The Government, who declared that they considered themselves bound by their unilateral declaration and the Chamber’s strike-out decision, had paid, on 28 April 2017, the compensation stipulated in the unilateral declaration to the applicant, who accepted the payment. The Court does not, therefore, discern any basis for a decision under Article 37 § 2 of the Convention either.
103. Consequently, the compliance with Articles 5 § 1 and 7 § 1 of the Convention of the applicant’s preventive detention from 6 May 2011 until 20 June 2013 in Straubing Prison does not fall within the Grand Chamber’s jurisdiction.
104. In the light of the findings on the scope of the case before the Court, the Grand Chamber would further observe the following. In the Court’s judgments to date, the German term “nachträgliche Sicherungsverwahrung”, that is, preventive detention which was imposed on a convicted offender in a judgment adopted separately from, and after a previous criminal conviction, has been translated into English by “retrospective” or “retrospectively ordered” preventive detention, and into French by “ détention de sûreté rétroactive ” or “ détention de sûreté ordonnée rétroactivement ”.
105. The Grand Chamber agrees that there is a retrospective element in the order of such preventive detention in that it is a precondition for the order that the person concerned was sentenced in a previous judgment to a term of imprisonment for a serious criminal offence. However, there is equally a strong prospective element in that the order must be based on an ex nunc assessment that it is likely that the person concerned would commit new offences in the future. That prospective element is further reinforced after the changes made by the Federal Constitutional Court and the German legislator to the preventive detention regime applicable to persons such as the applicant. In line with these changes, it is required, in addition, that at the time of the order the persons concerned suffer from a mental disorder, as a result of which they are dangerous to the public.
106. In view of these strong prospective elements, the Grand Chamber considers that the concept of “nachträgliche Sicherungsverwahrung” is more adequately translated into English by “subsequent preventive detention”, and into French by “ détention de sûreté subséquente ”, thus denominating a measure which is imposed at a later point in time compared to the conviction and which, while having regard to the last conviction of the person concerned, is essentially based on a mental disorder existing at the time when the measure is imposed and rendering the person dangerous.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
107. The applicant complained that his “retrospectively” ordered preventive detention executed on the basis of the Regensburg Regional Court’s 3 August 2012 judgment from 20 June 2013 onwards in the Straubing preventive detention centre had been in breach of his right to liberty, as provided in Article 5 § 1 of the Convention. That provision, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
108. The Government contested that argument.
109. The Chamber, having regard to the Court’s considerations in the leading case of Bergmann v. Germany (cited above, §§ 77-134), found that the applicant’s preventive detention from 20 June 2013 onwards had complied with Article 5 § 1. It considered that the applicant’s detention had been justified under sub-paragraph (e) of Article 5 § 1. The applicant, who suffered from sexual sadism and was likely to commit another murder if released, was a person of unsound mind for the purposes of this provision. Furthermore, since his transfer from prison to the Straubing preventive detention centre on 20 June 2013, the applicant’s detention had been lawful as it had then been executed in a suitable institution for mental health patients.
110. The applicant submitted that his preventive detention based on the Regional Court’s judgment of 3 August 2012 had violated Article 5 § 1 of the Convention also from 20 June 2013 onwards, as had his preventive detention preceding that date.
111. The applicant claimed that his detention had been justified under none of the sub-paragraphs (a) to (f) of Article 5 § 1. In particular, it could not be justified under Article 5 § 1 (e) as detention of a person “of unsound mind” as interpreted in the Court’s case-law (he referred to Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33, and Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012). First of all, he had not reliably been shown to be of unsound mind, as required by sections 7(2)(1) and 105 of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 56, 59 and 72 above). Half of the experts who had examined him since 1999, including expert F. who had been consulted in the proceedings at issue, had not found that he suffered from a mental disorder, and in particular from sexual sadism, so that a true mental disorder had not been proven. Moreover, contrary to what was desirable under section 43(2) of the Juvenile Courts Act, none of the experts was qualified to examine young people.
112. Secondly, a mental disorder under section 1 of the Therapy Detention Act, which had been established by the domestic courts only, might be less restrictive than the notion of persons of unsound mind in Article 5 § 1 (e) (the applicant referred to the case of Glien v. Germany, no. 7345/12, § 87, 28 November 2013). Therefore, it had not been established that he was of unsound mind, that is to say suffering from a mental disorder warranting compulsory confinement.
113. Thirdly, the applicant accepted that under domestic law (Article 67e of the Criminal Code: see paragraph 64 above), the validity of his continued confinement depended upon the persistence of a mental disorder.
114. Moreover, the applicant argued that his detention as a mental-health patient had not been lawful within the meaning of Article 5 § 1 (e). He argued that the Government had acknowledged in their unilateral declaration that the Regensburg Regional Court’s judgment of 3 August 2012 had been unlawful. In the applicant’s view, this could not be cured at a later stage by merely transferring him to the new preventive detention centre. Without a new judgment ordering his preventive detention, there had been no legal basis for his confinement also after 20 June 2013.
115. In the applicant’s submission, his preventive detention from 20 June 2013 onwards was also unlawful for another reason, namely that it had not been effected in an appropriate institution for mental-health patients, as required by the Court’s case-law (the applicant referred, in particular, to Glien, cited above, § 75). The new Straubing preventive detention centre to which he had been transferred on 20 June 2013 was not an appropriate institution for the detention of persons of unsound mind as it lacked an appropriate medical and therapeutic environment. Only five persons, including the applicant, out of a total of 57 inmates in the Straubing preventive detention centre were being detained as mental health patients. Therefore, he was being detained in a prison environment rather than in a psychiatric setting.
116. In the Government’s view, the applicant’s preventive detention from 20 June 2013 onwards had complied with Article 5 § 1. It had been justified under sub-paragraph (e) of Article 5 § 1 as detention of a person of unsound mind.
117. The Government explained that in its leading judgment of 4 May 2011, the Federal Constitutional Court had endeavoured to adapt the standards of the Constitution to the requirements of Article 5 § 1 (and also Article 7 § 1) of the Convention as elaborated by the Court in the case of M. v. Germany (cited above). The Federal Constitutional Court had expressly held that subsequent preventive detention could henceforth only be ordered if the requirements of Article 5 § 1 (e) had been met (see paragraphs 72 and 75 above).
118. In the Government’s submission, the conditions laid down in the Court’s case-law for detaining the applicant as a person of unsound mind (the Government referred to Bergmann, cited above, § 96) were satisfied. In the main proceedings, the applicant had been found by the Regional Court, which had consulted two renowned external psychiatric experts, to suffer from a true mental disorder, namely a serious form of sexual sadism, at the relevant time, that is to say when the subsequent preventive detention order had been issued. That persisting disorder warranted compulsory confinement as there was a high risk that he would commit the most serious types of violent crimes or sexual offences if released.
119. As had been confirmed in the case of Glien (cited above, § 84), the applicant could be considered as a person of unsound mind for the purposes of Article 5 § 1 (e) despite the fact that he had not suffered from a condition which excluded or diminished his criminal responsibility at the time when he committed his offence.
120. Moreover, the applicant’s detention as a person of unsound mind had been lawful for the purposes of Article 5 § 1 (e) since 20 June 2013. It had a sufficiently precise legal basis, namely sections 7(2) and 105(1) of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011. Furthermore, the applicant had been detained in an appropriate institution for mental health patients from 20 June 2013 onwards.
121. The Government stressed in that regard that the Regensburg Regional Court had not ordered the applicant’s detention in an inappropriate institution on 3 August 2012, even though the applicant had initially been detained in prison. On the contrary, in line with the Court’s judgment in the case of M. v. Germany (cited above) and the judgment of the Federal Constitutional Court of 4 May 2011, the applicant was to be detained in a suitable institution (as soon as possible). This could not, however, be put into practice until 20 June 2013 as the new preventive detention centre was still under construction. Some time had been necessary to adapt the conditions of preventive detention to the requirements of the Convention. From 20 June 2013 onwards, the applicant had been detained in a suitable institution and the breach of Article 5 § 1, as acknowledged by the Government in its unilateral declaration during the period from 6 May 2011 until 20 June 2013, had then ended, without the Regional Court having to issue a new judgment.
122. In line with the reformed legal framework for preventive detention on federal and Länder levels (in particular, Article 66 (c) of the Criminal Code and the relevant Bavarian Preventive Detention Execution Act, see paragraphs 77-80 above), the therapeutic treatment available to persons with mental disorders detained in the preventive detention centres, while being adapted to the fact that they had been criminally liable for their offences, was similar to that available to patients in a closed psychiatric hospital. The focus of the new overall concept of preventive detention now lay on the individualised medical and therapeutic treatment of the detainees. The statistical material available (see paragraph 91 above) showed that many of the detainees whose preventive detention had been prolonged or ordered subsequently had been released since the M. v. Germany judgment had become final. It was thus clear that only some of the detainees concerned had been considered as persons of unsound mind and remained in detention and that there could be no question of all the preventive detainees concerned being classified as suffering from a true mental disorder.
123. In the Straubing preventive detention centre, which, for practical purposes, had been built on the premises of Straubing prison but was entirely separate from the prison in terms of – substantially improved – material conditions and therapeutic provision by many new specialised staff members, the applicant had accordingly been provided with intensive care, based on an individualised treatment concept, and comprehensive therapy. The Government further stressed that while only a small number of inmates in the preventive detention centre had been sexual sadists, most of the inmates had suffered from personality disorders and each of them had been provided with the individualised treatment appropriate to his specific disorder.
C. The third party’s submissions
124. The European Prison Litigation Network (EPLN) submitted that the Chamber’s interpretation of the notion of “persons of unsound mind” within the meaning of sub-paragraph (e) of Article 5 § 1 in the case of Bergmann and in the present application so as to cover persons in preventive detention amounted to depriving these persons of their Convention rights. The interpretation of that term was too broad and imprecise. The EPLN noted that according to the Federal Constitutional Court, the notion of mental disorder under German law also covered non-pathological disorders. However, the term persons of unsound mind, or aliéné in the French text, designated persons who were at least in a severe pathological state and whose capacity for assessing the wrongfulness of their acts was non-existent or at least diminished. Moreover, in order to be convicted, the persons concerned had to have been criminally liable at the time of their offence, which was incompatible with the subsequent finding that these persons were of unsound mind.
125. The EPLN took the view that in the Bergmann and Ilnseher cases the Chamber had failed to protect the persons concerned from arbitrariness as it had not prevented the notion of persons “of unsound mind” from being assimilated and confused with the dangerousness of the persons concerned. This served to detain these persons by means of a circumvention of the Convention rights as interpreted in the case of M. v. Germany.
D. The Grand Chamber’s assessment
1. Recapitulation of the relevant principles
(a) Grounds for deprivation of liberty
126. The Court reiterates that sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Del Río Prada v. Spain [GC], no. 42750/09, § 123, ECHR 2013 and the references therein). The applicability of one ground does not necessarily preclude that of another; detention may, depending on the circumstances, be justified under more than one sub-paragraph (see Kharin v. Russia, no. 37345/03, § 31, 3 February 2011 and the references therein). Only a narrow interpretation of the exhaustive list of permissible grounds for deprivation of liberty is consistent with the aim of Article 5, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Winterwerp, cited above, § 37, and Shimovolos v. Russia, no. 30194/09, § 51, 21 June 2011).
127. As regards the justification of a person’s detention under sub ‑ paragraph (e) of Article 5 § 1, the Court reiterates that the term “persons of unsound mind” in that provision has to be given an autonomous meaning (cf. Glien, cited above, §§ 78 et seq.). It does not lend itself to precise definition since its meaning is continually evolving as research in psychiatry progresses (see Winterwerp, cited above, § 37, and Rakevich v. Russia, no. 58973/00, § 26, 28 October 2003). An individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp, cited above, § 39; Stanev, cited above, § 145; and Bergmann, cited above, § 96).
128. In deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40, and S. v. Germany, no. 3300/10, § 81, 28 June 2012).
129. As regards the first condition for a person to be deprived of his liberty as being of “unsound mind”, namely that a true mental disorder must have been established before a competent authority on the basis of objective medical expertise, the Court recalls that, despite the fact that the national authorities have a certain discretion in particular on the merits of clinical diagnoses (see H.L. v. the United Kingdom, no. 45508/99, § 98, ECHR 2004 ‑ IX), the permissible grounds for deprivation of liberty listed in Article 5 § 1 are to be interpreted narrowly. A mental condition has to be of a certain severity in order to be considered as a “true” mental disorder for the purposes of sub-paragraph (e) of Article 5 § 1 as it has to be so serious as to necessitate treatment in an institution for mental health patients (cf. Glien, cited above, §§ 82-85, and Petschulies v. Germany, no. 6281/13, § 76, 2 June 2016).
130. As for the requirements to be met by an “objective medical expertise”, the Court considers in general that the national authorities are better placed than itself to evaluate the qualifications of the medical expert in question (see, mutatis mutandis, Sabeva v. Bulgaria, no. 44290/07, § 58, 10 June 2010; Biziuk v. Poland (no. 2), no. 24580/06, § 47, 17 January 2012; and Ruiz Rivera v. Switzerland, no. 8300/06, § 59, 18 February 2014). However, in certain specific cases, it has considered it necessary for the medical experts in question to have a specific qualification, and has in particular required the assessment to be carried out by a psychiatric expert where the person confined as being “of unsound mind” had no history of mental disorders (see C.B. v. Romania, no. 21207/03, § 56, 20 April 2010; Ťupa v. the Czech Republic, no. 39822/07, § 47, 26 May 2011; Ruiz Rivera, cited above, § 59; and Vogt v. Switzerland (dec.), no. 45553/06, § 36, 3 June 2014) as well as, sometimes, the assessment to be made by an external expert (see in this respect Ruiz Rivera, cited above, § 64).
131. Moreover, the objectivity of the medical expertise entails a requirement that it was sufficiently recent (cf. Varbanov v. Bulgaria, no. 31365/96, § 47, ECHR 2000 ‑ X; Witek v. Poland, no. 13453/07, § 41, 21 December 2010; Ruiz Rivera, cited above, § 60; and W.P. v. Germany, no. 55594/13, § 49, 6 October 2016). The question whether the medical expertise was sufficiently recent depends on the specific circumstances of the case before it (see Aurnhammer v. Germany (dec.), no. 36356/10, § 35, 21 October 2014).
132. In order for the mental disorder to have been established before a competent authority, and particularly the domestic courts, the Court reiterates that it has stressed in the context of preventive detention of dangerous offenders that the domestic courts must sufficiently establish the relevant facts on which their decision to detain the person concerned is based with the help of adequate medical expert advice (see, in the context of Article 5 § 1 (a), H.W. v. Germany, no. 17167/11, §§ 107 and 113, 19 September 2013, and Klinkenbuß v. Germany, no. 53157/11, § 48, 25 February 2016; and, in the context of Article 5 § 1 (e), W.P. v. Germany, cited above, § 49). In the Court’s view, this requires the domestic authority to subject the expert advice before it to a strict scrutiny and reach its own decision on whether the person concerned suffered from a mental disorder with regard to the material before it.
133. As regards the second requirement for an individual to be deprived of his liberty as being of “unsound mind”, namely that the mental disorder must be of a kind or degree warranting compulsory confinement (see paragraph 127 above), the Court reiterates that a mental disorder may be considered as being of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary because the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him from, for example, causing harm to himself or other persons (see, for example, Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003 ‑ IV; and Petschulies, cited above, § 61).
134. The relevant time at which a person must be reliably established to be of unsound mind, for the requirements of sub ‑ paragraph (e) of Article 5 § 1, is the date of the adoption of the measure depriving that person of his liberty as a result of that condition (cf. Luberti v. Italy, 23 February 1984, § 28, Series A no. 75; B. v. Germany, cited above, § 68; and Bergmann, cited above, § 98). However, as shown by the third minimum condition for the detention of a person for being of unsound mind to be justified, namely that the validity of continued confinement must depend on the persistence of the mental disorder (see paragraph 127 above), changes, if any, to the mental condition of the detainee following the adoption of the detention order must be taken into account.
(b) “Lawful” detention “in accordance with a procedure prescribed by law”
135. Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Erkalo v. the Netherlands, 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI; Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000 ‑ III; and Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008).
136. Compliance with national law is not, however, sufficient in itself: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp, cited above, §§ 37 and 45; Saadi, cited above, § 67; and Reiner v. Germany, no. 28527/08, § 83, 19 January 2012).
137. In order for the detention to be “lawful” and not arbitrary, the deprivation of liberty must be shown to have been necessary in the circumstances (see Varbanov, cited above, § 46; and Petschulies, cited above, § 64). The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest (see C.B. v. Romania, cited above, § 48; Karamanof v. Greece, no. 46372/09, § 42, 26 July 2011; Stanev, cited above, § 143; and V.K. v. Russia, no. 9139/08, § 30, 4 April 2017 and the references therein).
138. The “lawfulness” of detention further requires that there be some relationship between the grounds of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will only be “lawful” for the purposes of sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (see Hutchison Reid, cited above, § 49; Brand v. the Netherlands, no. 49902/99, § 62, 11 May 2004; Glien, cited above, § 75; and Bergmann, cited above, § 99, and the references therein).
139. The Court observes in this context that, as illustrated by the present case, the person’s conditions of detention, while being based on the same detention order, can change during the execution of the detention based on that order.
140. It observes that in the case of W.P. v. Germany (cited above, §§ 24 et seq.), the Court struck the application out of the list in respect of the alleged breaches of Article 5 § 1 (and Article 7 § 1) of the Convention in view of the Government’s unilateral declaration acknowledging breaches of these provisions in a first period of detention as a result of that applicant not having been detained in a suitable institution. As for a second period of detention, following Mr W.P.’s transfer to a different institution but still based on the same detention order, the Court found that Mr W.P.’s detention had complied with Article 5 § 1 (and Article 7 § 1) as he was detained in a suitable institution for mental health patients with the aim of treating his mental disorder during that second period.
141. The approach taken by the Court thus implies that the detention of a person of unsound mind on the basis of the same detention order may become lawful and thus comply with Article 5 § 1 once that person is transferred to a suitable institution. Under the above-mentioned interpretation of the term “lawfulness”, there is indeed an intrinsic link between the lawfulness of a deprivation of liberty and its conditions of execution. This stance is further comparable to the approach taken in the assessment of the compliance of conditions of detention with Article 3, where a change in the conditions of detention is also determinative for assessing compliance with the prohibition on degrading treatment (see, in particular, Muršić v. Croatia [GC], no. 7334/13, §§ 136 et seq., ECHR 2016). It follows that the relevant point in time, or period, for assessing whether a person was detained in a suitable institution for mental health patients is the period of detention at issue in the proceedings before this Court, and not the time when the detention order was made.
2. Application of these principles to the present case
142. The Court is called upon to determine whether, in the light of the above principles, the applicant’s preventive detention at issue both fell within one of the permissible grounds for deprivation of liberty under sub ‑ paragraphs (a) to (f) of Article 5 § 1 and was “lawful” for the purposes of that provision, and thus complied with Article 5 § 1.
143. The Court would clarify that the period at issue in the proceedings before the Grand Chamber started on 20 June 2013, when the applicant was transferred from Straubing Prison to the new Straubing preventive detention centre (see paragraph 46 above). As shown above (see paragraphs 99-103), the prior period from 6 May 2011 to 20 June 2013 does not fall within the Grand Chamber’s jurisdiction. The period ended on 18 September 2014, when a fresh decision ordering the continuation of the applicant’s preventive detention was adopted in periodical judicial review proceedings (see paragraph 42 above), which the applicant could contest separately before the domestic courts.
(a) Grounds for deprivation of liberty
144. In examining whether the applicant’s detention could be justified under any of the sub-paragraphs (a) to (f) of Article 5 § 1, the Court observes at the outset that his preventive detention was ordered subsequently, in a separate judgment of 3 August 2012 adopted after the trial court’s judgment of 29 October 1999. Having regard to the Court’s well-established case-law (see M. v. Germany, cited above, §§ 96-101; Glien, cited above, § 107; and Bergmann, cited above, § 104, concerning subsequently prolonged preventive detention, as well as B. v. Germany, cited above, §§ 71-76, and S. v. Germany, cited above, §§ 84-90, concerning subsequently imposed preventive detention), his detention could not, therefore, be justified under sub-paragraph (a) of Article 5 § 1 as detention “after conviction” as there was no sufficient causal connection between the applicant’s conviction by the trial court – which did not comprise a preventive detention order – and his deprivation of liberty as a result of the preventive detention order imposed in 2012.
145. Likewise, the applicant’s preventive detention could not be justified under sub-paragraph (c) of Article 5 § 1 as being “reasonably considered necessary to prevent his committing an offence”. Under the Court’s well ‑ established case-law, this ground of detention was not adapted to a policy of general prevention directed against an individual who presented a danger on account of his propensity to crime. It only afforded Contracting States a means of preventing sufficiently concrete and specific offences as regards, in particular, the time and place of their commission and their victims (see M. v. Germany, cited above, §§ 89 and 102, and the references therein, and Jendrowiak v. Germany, no. 30060/04, § 35, 14 April 2011), which did not cover potential further offences the applicant might commit. This is indeed uncontested between the parties.
146. The Court will therefore examine, as alleged by the Government and contested by the applicant, whether the applicant’s detention can be justified as detention of a person of unsound mind for the purposes of Article 5 § 1 (e). As pointed out above (see paragraphs 127 and 134), this requires, in the first place, that, at the relevant time of the decision ordering his preventive detention on 3 August 2012, the applicant was reliably shown to be of unsound mind, that is, a true mental disorder must have been established before a competent authority on the basis of objective medical expertise.
147. The Court observes that the Regional Court, which had consulted two external psychiatric experts, K. and F., was convinced that the applicant suffered 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). The court was satisfied that the applicant has had fantasies of sexual violence entailing attacks on the neck and the strangulation of women and masturbation on their inanimate bodies. That sexual sadism was of a serious nature and had affected the applicant’s development since his adolescence. The mental disorder had caused and been manifested in his brutal offence and still persisted. The applicant therefore suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act. It specified that under that Act, a mental disorder did not have to be so serious as to exclude or diminish the criminal responsibility of the person concerned (see paragraphs 32-37 above).
148. In determining whether the Regional Court can thereby be said to have established that the applicant suffered from a true mental disorder for the purposes of Article 5 § 1 (e) of the Convention, the Court notes that the applicant contested this, arguing that the domestic court’s interpretation of the term mental disorder might be wider than the term of unsound mind and that he did not suffer from a mental disorder (see paragraphs 111-112 above). The third party, for its part, argued that the term persons of unsound mind should be interpreted as covering only persons in a serious pathological state whose capacity for assessing the wrongfulness of their acts was excluded or at least diminished (see paragraph 124 above).
149. Having regard to the fact that the notion of persons of unsound mind must be given an autonomous meaning, it is not a requirement that the person concerned suffered from a condition which would be such as to exclude or diminish his criminal responsibility under domestic criminal law when committing an offence (see also Glien, cited above, §§ 83-84, and Petschulies, cited above, §§ 74-75).
150. The Court further refers to its previous findings, relied upon by the applicant, that it appears that the notion of “persons of unsound mind” (“ aliéné ” in the French version) in Article 5 § 1 (e) of the Convention might be more restrictive than the notion of “mental disorder” (“ psychische Störung ”) referred to in section 1(1) of the Therapy Detention Act (see Glien, cited above, §§ 87-88; Bergmann, cited above, § 113; and W.P. v. Germany, cited above, § 60). However, the Convention does not require that the notions used in domestic law, and in particular the notion of mental disorder for the purposes of section 1(1) of the Therapy Detention Act, be defined or interpreted in the same manner as terms used in the Convention. What is decisive, in the Court’s view, is whether the domestic courts, in the case before them, have established a disorder which can be said to amount to a true mental disorder as defined by this Court’s case-law. In this context, the Court again stresses the need to interpret the permissible grounds for deprivation of liberty narrowly (see paragraphs 126 and 129 above).
151. In the present case, the domestic courts, as detailed above, found the applicant to suffer from a form of sexual sadism which must be considered as being of a serious nature. The applicant’s condition necessitated comprehensive therapy, to be provided either in the preventive detention centre or in a psychiatric hospital (see paragraphs 32-37 above). The Court is therefore satisfied that the condition with which the applicant was diagnosed amounted to a true mental disorder for the purposes of Article 5 § 1 (e).
152. As for the requirement that the finding of a true mental disorder be based on objective medical expertise, the Court takes note of the applicant’s argument that a number of experts had not found him to suffer from a mental disorder and that the experts consulted in the proceedings at issue had not been qualified to examine young people (see paragraph 111 above). As shown above, it is in the first place for the domestic courts to evaluate the qualifications of the medical expert(s) they consult (see paragraph 130 above). In the proceedings at issue, the Regional Court consulted two experienced external psychiatric experts, K. and F., who, in sum, had both considered the applicant to suffer from sexual sadism (see paragraph 35 above). The court had further regard to the findings of several medical experts who had previously examined the applicant since his arrest before concluding that the applicant suffered from sexual sadism (see paragraph 36 above). The applicant, who was aged 33 at the time when the experts drew up their report, did not bring forward any specific elements capable of demonstrating that the experts consulted manifestly lacked the necessary qualification to assess his mental condition and dangerousness. The Court is therefore satisfied that the Regional Court’s finding, confirmed on appeal, was based on objective medical expertise.
153. As to whether the domestic courts “established” that the applicant suffered from a true mental disorder for the purposes of Article 5 § 1 (e), the Court notes that the Regensburg Regional Court, in the impugned judgment of 3 August 2012, thoroughly scrutinised the findings made in the reports of the two psychiatric experts it had consulted, as well as the findings of numerous medical experts who had previously examined the applicant since his arrest following his offence, and decided on that basis that the applicant suffered from sexual sadism (see paragraphs 34-36 above).
154. The Court does not overlook in this context the fact that the Regional Court concluded in the proceedings at issue in 2012 that the applicant suffered from this serious mental disorder, whereas the trial court had not considered that the applicant had suffered from a severe mental disorder and had therefore found that he had acted with full criminal responsibility when committing his offence in 1997. This does not, however, suffice to cast any doubt on the establishment of the facts by the domestic courts concerning the applicant’s mental condition in the circumstances of the proceedings at issue in the present case, i.e. starting from 20 June 2013 (paragraph 103 above).
155. In this connection, it must be noted, firstly, that the domestic courts have a certain discretion regarding the merits of clinical diagnoses. Moreover, in the applicant’s case, the Regional Court in fact addressed the evolution in the assessment of the applicant’s mental condition by the medical experts and the courts. Having regard to the material before it, the Regional Court found that the applicant had hidden the sadistic motives for his offence at his trial in 1999. The trial court, which had also consulted two medical experts, had nevertheless already discerned some indications that the young applicant suffered from a sexual deviation. It was only in 2005/2006 that the applicant had admitted to two experts his fantasies of sexual violence which he had put into practice with his murder. The Regional Court further explained that 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 (see paragraph 36 above).
156. The Court would add in this context that the statistical material before it (see paragraph 91 above) shows that a considerable number of persons remanded in subsequently ordered or prolonged preventive detention have been released since the Court’s judgment in the case of M. v. Germany (cited above). This can be seen as indicating that an individual assessment of the mental condition of persons remanded in subsequently ordered preventive detention is carried out.
157. Furthermore, a person’s mental condition is liable to change over time. As shown above, in the context of Article 5 § 1 (e) it is only necessary to assess whether the person concerned is of unsound mind at the date of adoption of the measure depriving that person of his liberty (as opposed to the date of the commission of a previous offence, which, in any event, is not a precondition for detention under that sub-paragraph). Moreover, in determining whether the mental disorder is of a kind or degree warranting compulsory confinement, it is usually necessary to assess the danger a person poses to the public at the time of the order and in the future. In view of these essential prospective elements, the preventive detention ordered against the applicant can best be described as “subsequent” to his previous offence and conviction, despite the fact that in the assessment of his dangerousness regard should also be had to his history of offences, thus embracing a retrospective aspect (see also paragraphs 104-106 above).
158. The Court further considers that, as for the second condition for a person to be classified as “of unsound mind”, the Regional Court was justified in considering that the applicant’s mental disorder was of a kind or degree warranting compulsory confinement in view of the high risk, as established by that court, that the applicant, as a result of this disorder, would again commit another serious offence similar to the one he had been found guilty of, that is to say another murder for sexual gratification, if released.
159. Third, the validity of the applicant’s continued confinement depended upon the persistence of his mental disorder. In accordance with domestic law (Article 67d § 2 of the Criminal Code, read in conjunction with section 316(f)(2) and (3) of the Introductory Act to the Criminal Code, see paragraph 65 above), the domestic courts could order the continuation of his preventive detention in the subsequent periodical judicial review proceedings (see paragraphs 42 and 64 above) only if, and as long as, there was a high risk that he would reoffend as a result of that disorder if released. Nothing in the file indicates that this risk had ceased to exist during the period of time at issue in the present case.
160. The Court therefore concludes that the applicant was a person of unsound mind for the purposes of Article 5 § 1 (e).
(b) “Lawful” detention “in accordance with a procedure prescribed by law”
161. As for the lawfulness of the applicant’s detention, the Court notes that the detention was ordered in a judgment of the Regional Court of 3 August 2012, and confirmed on appeal, under 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 (see paragraphs 56, 59 and 72 above).
162. The Court takes note of the applicant’s submission that the Regional Court’s judgment of 3 August 2012 was unlawful, as allegedly conceded by the Government in its unilateral declaration, and that there was thus no legal basis for his detention at issue. However, in their unilateral declaration the Government only acknowledged that the applicant had not been detained in a suitable institution for mental health patients in a period prior to the one at issue in the present case (see paragraph 99 above). This does not cast doubt upon the validity of the detention order as such and thus upon the compliance with domestic law of the applicant’s detention.
163. The Court observes in this regard that, as the Government convincingly explained, the Regional Court, in its judgment of 3 August 2012, had not ordered the applicant’s preventive detention in a particular institution but had only generally ordered his preventive detention. Under the principles established by the Federal Constitutional Court in its leading judgment (paragraphs 15 and 68-75, in particular 75 above), as applied by the Regional Court, this meant that the applicant was to be detained in a suitable institution. The applicant’s transfer, on 20 June 2013, to the preventive detention centre thus complied with the initial order made by the Regional Court, which remained a valid basis for the applicant’s detention.
164. The lawfulness of the applicant’s detention under Article 5 § 1 (e) further requires the detention to have been effected in an appropriate institution for mental-health patients. In line with the Court’s case-law (see paragraphs 138-141 above), the relevant point in time for the assessment of this question is the period of detention at issue, from 20 June 2013 until the next periodical judicial review decision on the continuation of the applicant’s preventive detention which was made on 18 September 2014, and not the moment when the detention order was made (here 3 August 2012). During the period from 20 June 2013 until 18 September 2014, the applicant was detained in the newly-established Straubing preventive detention centre.
165. The Court notes that the applicant did not contest that there had been a change in the medical and therapeutic care provided for him in that centre, compared to the conditions prevailing in Straubing Prison. The Court observes that, according to the material before it, a total of 71 members of staff are in charge of a maximum of 84 detainees in the Straubing preventive detention centre (see paragraph 46 above). In particular, one psychiatrist, seven psychologists, one physician and four nurses are entrusted with providing medical and therapeutic treatment. A broad range of treatment is provided for persons suffering from mental disorders, such as treatment programmes for violent or sexual offenders, individual therapy tailored to the detainee’s needs, group social therapy and individual social pedagogical support, if necessary involving external therapists. The applicant was offered, in particular one-to-one or group social therapy, an intensive treatment programme for sexual offenders and therapy administered by an external psychiatrist.
166. The Court takes note of the applicant’s argument that, despite these elements, the preventive detention centre was not an appropriate institution for mental health patients as the majority of the persons placed in the centre had not been found to suffer from a mental disorder.
167. The Court observes that, in accordance with the constitutional requirement of differentiating between preventive detention and imprisonment, all persons placed in preventive detention, irrespective of whether or not they are detained for suffering from a mental disorder, are now generally provided with substantially improved material conditions of detention compared to those in which they had previously been detained in separate prison wings (see paragraph 81 above). However, this does not warrant the conclusion that the medical and therapeutic provision in the preventive detention centre was not suitable for mental health patients such as the applicant. As mentioned above, the applicant is being provided with an individualised therapy programme tailored to his needs and his mental condition. It further takes note of the Government’s explanation that a large number of detainees in that centre suffer at least from personality disorders warranting treatment, and that all detainees are provided with individualised treatment tailored to their specific disorders.
168. In view of these factors, the Court is satisfied that the applicant was offered the therapeutic environment appropriate for a person remanded as a mental health patient and was thus detained in an institution suitable for the purposes of Article 5 § 1 (e). It would note in that context that the same conclusion as to the suitability of a new preventive detention centre for the detention of mental health patients had also been drawn, in particular, in respect of the applicant in the case of Bergmann (cited above, §§ 118-128).
169. Furthermore, in order for the detention to be “lawful” and not arbitrary, the deprivation of liberty must be shown to have been necessary in the circumstances (see paragraph 137 above). In the present case, as set out above (see paragraphs 33 and 158), the domestic courts found that there was a high risk that the applicant would commit another murder for sexual gratification if released and did not consider measures less severe than a deprivation of liberty to be sufficient to safeguard the individual and public interest. Given that in the circumstances of the instant case the domestic courts, with the help of expert advice, established a considerable danger for the individuals concerned of becoming the victims of one of the most serious offences punishable under the German Criminal Code, the Court is satisfied that the applicant’s deprivation of liberty had also been shown to have been necessary in the circumstances.
170. It follows that the applicant’s subsequently ordered preventive detention, in so far as it was executed as a result of the impugned judgment from 20 June 2013 until 18 September 2014 in the Straubing preventive detention centre, was justified under sub-paragraph (e) of Article 5 § 1 as the lawful detention of a person of unsound mind.
171. Accordingly, the Court finds that there has been no violation of Article 5 § 1 of the Convention in this respect.
IV. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION
172. The applicant further complained that his “retrospectively” ordered preventive detention, executed on the basis of the Regensburg Regional Court’s judgment of 3 August 2012 from 20 June 2013 onwards in the Straubing preventive detention centre, had also breached his right not to have a heavier penalty imposed than the one applicable at the time of his offence in June 1997. He relied on Article 7 § 1 of the Convention, which reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
173. The Government contested that argument.
174. The Chamber found that its considerations under Article 7 § 1 in the case of Bergmann (cited above), which concerned preventive detention prolonged beyond a former statutory time-limit, also applied to the present case of preventive detention ordered “retrospectively” in a separate judgment. As in the Bergmann case, the Court found that where preventive detention was, and could only be, ordered or extended to treat a mental disorder in a suitable institution, the punitive element of preventive detention, and its connection with the applicant’s criminal conviction, was erased to such an extent that the measure was no longer a penalty within the meaning of Article 7 § 1. The applicant’s preventive detention could therefore no longer be classified as a penalty. Consequently, there had been no violation of Article 7 § 1.
175. The applicant took the view that his preventive detention served as from 20 June 2013 in the Straubing preventive detention centre had breached Article 7 § 1 of the Convention.
176. The applicant submitted that his preventive detention had been ordered “retrospectively”. At the time of the commission of his offence in June 1997, the Juvenile Courts Act had not yet authorised preventive detention orders in respect of young offenders and consequently, no preventive detention order had been made in the judgment convicting him in 1999. It was only on 12 July 2008 that Article 7 § 2 of the Juvenile Courts Act, which authorised “retrospective” preventive detention orders against young offenders, entered into force (see paragraphs 54-57 above), on which the preventive detention order of 3 August 2012 against him was based.
177. Furthermore, the applicant argued that his preventive detention had to be classified as a penalty. In the applicant’s view, the material point in time for assessing whether a measure imposed on a person in a judgment constituted a penalty for the purposes of Article 7 § 1 was the date of the delivery of the judgment ordering the measure. At the time of the delivery of the judgment ordering his preventive detention on 3 August 2012, which was then executed in Straubing Prison, that detention had constituted a penalty, as had been acknowledged by the Government in their unilateral declaration. The judgment of 3 August 2012 remained in breach of the Convention, and the preventive detention order made therein was unlawful also following his transfer to the new preventive detention centre. He argued that the unlawfulness of the order could not be remedied at a later stage, irrespective of whether the modalities of execution of his preventive detention in that centre had changed to such an extent that such preventive detention could no longer be classified as a penalty. The judgment therefore had to be quashed and his case be remitted for a new trial.
178. Referring to the criteria for determining whether a measure constituted a penalty for the purposes of Article 7 § 1 as summarised by the Court in the case of M. v. Germany (cited above, § 120), the applicant further argued that, looking behind the appearances, his preventive detention, in any event, still constituted a penalty within the autonomous meaning of the term under that provision also after his transfer to the Straubing preventive detention centre.
179. The applicant submitted that his preventive detention had been imposed following conviction for a criminal offence. He stressed that such detention could not be ordered without a previous conviction of an offence.
180. In the applicant’s view, preventive detention was a criminal law measure under domestic law, given that the provisions governing it were essentially laid down in Articles 66-66c of the Criminal Code and Article 463 of the Code of Criminal Procedure.
181. As for the nature and purpose of the measure, the applicant argued that preventive detention as executed in the Straubing preventive detention centre in accordance with the changes introduced under the Preventive Detention (Distinction) Act of 5 December 2012 was still fundamentally different from detention in a psychiatric hospital. He stressed that of the 71 new posts created in the Straubing preventive detention centre (see paragraph 46 above), only 13 were therapeutic staff whereas the majority of staff consisted of administrative personnel and uniformed prison officers. Moreover, despite the modified conditions of detention in the preventive detention centre, there was no separation in terms of organisation between the prison and the preventive detention centre, the latter being merely a department of the former and located on the premises of a penal institution.
182. As for the procedures involved in the making and implementation of a preventive detention order, the applicant noted that the measure had been ordered by a criminal court. Its execution had been determined by the courts responsible for the execution of sentences. Furthermore, the provisions governing the order and execution of preventive detention were still part of the Criminal Code (Articles 66-66c) and of the Code of Criminal Procedure (Article 463).
183. In the applicant’s submission, civil courts were at least as experienced as criminal courts in assessing the necessity of confining mental health patients whose condition could lead to serious crimes. Civil courts had jurisdiction to decide on the detention of persons of unsound mind who were suspected of posing a danger to public under the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 90 above). Furthermore, civil courts had jurisdiction to order therapy detention of persons of unsound mind in an appropriate institution under the Therapy Detention Act (see paragraph 85 above).
184. Preventive detention, which no longer had any maximum duration and was only terminated when a court found that there was no longer a high risk that the detainee would commit the most serious types of violent or sexual offences on account of his mental disorder, was still one of the severest measures – if not the severest measure – which could be imposed under the German Criminal Code. In the applicant’s view, regard should be had to the fact that he had committed his offence as a young adult, that he was a first offender and that therefore, in his case, preventive detention could mean virtually lifelong deprivation of liberty.
185. In sum, in the applicant’s view, all the criteria under the Court’s case-law for classifying his preventive detention as a penalty for the purposes of Article 7 § 1 were met.
186. The applicant further argued that, having regard to the comparative law material available in the case of M. v. Germany (cited above, §§ 70-73), few States authorised preventive detention for adults, and probably none apart from Germany authorised preventive detention for young offenders.
187. The Government took the view that, since the applicant’s transfer to the Straubing preventive detention centre on 20 June 2013, the preventive detention order of 3 August 2012 did not impose a heavier penalty on him than the one which was applicable at the time of his offence and therefore complied with Article 7 § 1 of the Convention.
188. The Government conceded that it was only after the applicant had committed his offence in 1997 that section 7(2) of the Juvenile Courts Act had entered into force, which permitted ordering preventive detention subsequently, that is to say after the conviction.
189. However, in the Government’s view, the applicant’s detention at the relevant time, from 20 June 2013 onwards, could no longer be classified as a penalty. Referring to the criteria established in the Court’s case-law for determining whether a particular measure was a penalty as summarised in the case of Bergmann (cited above, §§ 149-150), they argued that the only static factor to be taken into account was the question whether the measure concerned was imposed following conviction for a criminal offence. All other criteria were dynamic and could thus change over time.
190. Consequently, as recognised by the Court in the case of Bergmann (cited above, §§ 164-177), if sufficient changes were implemented, a measure could lose its previously punitive character. This could also occur during the execution of the measure on the basis of the same court order. It would be overly formalistic to require a new judicial decision on the applicant’s preventive detention following the applicant’s transfer to the new preventive detention centre as soon as it had been ready to accommodate detainees. As his condition had not changed, a fresh decision in June 2013 could only have been exactly the same as that taken on 3 August 2012.
191. The Government further explained that the specific criteria for classifying the applicant’s preventive detention as a penalty were no longer met after his transfer to the Straubing preventive detention centre. As regards the question whether the measure concerned was imposed following conviction for a criminal offence, the Government noted that, other than in the Bergmann case where that applicant’s preventive detention order had been made in the sentencing court’s judgment and been prolonged subsequently, the order for the applicant’s preventive detention in the present case had been made in 2012, many years after his conviction in 1999 – which had not entailed a preventive detention order – in separate proceedings. The connection between the applicant’s criminal conviction and his preventive detention was therefore not as close as in the Bergmann case.
192. As for the characterisation of the measure under domestic law, preventive detention had never been considered as a penalty under the long ‑ established twin-track system of sanctions in German criminal law, but as a corrective and preventive measure. The aim of that twin-track system of penalties and measures of correction and prevention was to make it possible to limit penalties for all offenders to what was strictly necessary to compensate for the perpetrator’s guilt. The Government stressed that, as shown by the Council of Europe’s Annual Penal Statistics (see paragraph 92 above), this twin-track system lead to Germany having a relatively low rate of long prison sentences compared to many other Contracting Parties to the Convention.
193. As for the nature and purpose of the measure, the Government explained that the applicant was no longer being detained as an offender for punitive purposes, but as a person of unsound mind with a criminal history in need of treatment, his mental disorder having become a new precondition for his detention. In accordance with the constitutional principle of proportionality, persons of unsound mind could only be detained for an extended period of time if their dangerousness had already manifested itself in a serious offence. The applicant’s detention was being executed in the relevant period in a new preventive detention centre focused on comprehensive therapy provided by a multi ‑ disciplinary team of experts, which had made intensive efforts to motivate the applicant to undergo suitable treatment for his disorder. As the preventive detention order had not been made in the trial court’s judgment, but the seriousness of his offence had only at a later stage been a reason for examining whether he suffered from a mental disorder and was consequently dangerous, the preventive nature of the measure was even clearer than in the Bergmann case.
194. The Government explained in that context that after the Federal Constitutional Court’s judgment, which had been intended to implement the Court’s judgment in the case of M. v. Germany, the whole system of preventive detention had been overhauled by federal legislation and implementation laws in each of the sixteen Länder. The Länder had built new preventive detention centres at considerable cost (exceeding 200 million euros) and employed numerous new expert staff members in order to ensure individualised care and comprehensive therapy for all detainees. The Government stressed that the reform of the German preventive detention system had been accompanied, examined and ultimately approved by a series of Chamber judgments of this Court. It was a model of successful dialogue and cooperation between this Court and a national supreme court with a view to enhancing fundamental rights protection in Europe.
195. The preventive detention centre in which the applicant was being held was thus not a prison, but a therapeutic institution for the treatment of persons with mental disorders which met standards comparable to those in closed wards of psychiatric hospitals. Therefore, the connection between the applicant’s detention and his conviction of an offence had been erased.
196. As for the procedures involved in the making and implementation of the measure, the Government conceded that the decisions on the imposition and review of preventive detention were still taken by criminal and not by civil courts. This was based on considerations of practicability. The courts belonging to the criminal justice system also took decisions on detention in a psychiatric hospital under Article 63 of the Criminal Code. As accepted in the case of Bergmann (cited above, § 146), they were thus particularly experienced in assessing the necessity of confining mental health patients whose condition could lead to serious crimes. In any event, the legal requirements to be applied would be the same irrespective of whether the civil or the criminal courts decided on the imposition and review of preventive detention.
197. The Government further argued that, while preventive detention was a severe measure as the law did not lay down any maximum duration, it was subject to regular judicial review.
198. The Government concluded that, as in the case of Bergmann, both the nature and the purpose of the applicant’s preventive detention had changed so substantially since his transfer to the preventive detention centre on 20 June 2013 that the measure could no longer be classified as a penalty.
199. Finally, the Government submitted that a number of Contracting Parties to the Convention, including the Czech Republic, France, Italy, Poland, Switzerland and the United Kingdom, permitted the preventive detention of persons who had committed crimes as young adults and that the applicant had been more than thirty years old when his preventive detention had been ordered.
C. The third party’s submissions
200. The EPLN considered that the Bergmann case, to which the present application was a follow-up case, constituted a radical change in the Court’s case-law in that preventive detention which was ordered for therapeutic purposes against a person suffering from a mental illness was deemed no longer to constitute a penalty. In the EPLN’s view, preventive detention executed in the new preventive detention centres in accordance with the Preventive Detention (Distinction) Act still had to be classified as a penalty. It was only applicable to persons convicted of criminal offences. It was ordered by the criminal courts. It was aimed at prolonging the detention after convicted offenders had served their sentence. Furthermore, it was executed in centres located on the premises of prisons. Being of potentially unlimited duration, it was one of the most serious infringements of fundamental rights in a democratic society. Its “retrospective” imposition therefore breached Article 7 § 1.
201. In the EPLN’s view, the aim of the German legislature in enacting the Preventive Detention (Distinction) Act, had been to circumvent the Court’s finding in the case of M. v. Germany that preventive detention as it stood then was incompatible with the Convention by making that detention fall within the ambit of Article 5 § 1 (e). However, treatment in a prison environment could not be compared to non-penal psychiatric internment.
D. The Grand Chamber’s assessment
1. Recapitulation of the relevant principles
202. The Court reiterates that the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Kafkaris v. Cyprus [GC], no. 21906/04, § 137, ECHR 2008; M. v. Germany, cited above, § 117; and Bergmann, cited above, § 149).
203. The concept of “penalty” in Article 7 is autonomous in scope. To render the protection afforded by Article 7 effective the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see Welch v. the United Kingdom, 9 February 1995, § 27, Series A no. 307 ‑ A; Jamil v. France, 8 June 1995, § 30, Series A no. 317 ‑ B; and Del Río Prada, cited above, § 81). The wording of the second sentence of Article 7 § 1 indicates that the starting-point – and thus a very weighty factor (see Glien, cited above, § 121; and Bergmann, cited above, § 150) – in any assessment of the existence of a penalty is whether the measure in question was imposed following conviction for a “criminal offence”. Other relevant factors are the characterisation of the measure under domestic law, its nature and purpose, the procedures involved in its making and implementation, and its severity (see Welch, cited above, § 28; Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 ‑ XV; and Kafkaris, cited above, § 142). The severity of the measure is not, however, in itself decisive, since many non-penal measures of a preventive nature may, just as measures which must be classified as a penalty, have a substantial impact on the person concerned (see Welch, cited above, § 32; Del Río Prada, cited above, § 82; and Bergmann, cited above, § 150).
204. The specific conditions of execution of the measure in question may be relevant in particular for the nature and purpose, and also for the severity of that measure and thus for the assessment of whether or not the measure is to be classified as a penalty for the purposes of Article 7 § 1. These conditions of execution may change during a period of time covered by the same judicial order. Just as in the context of Article 5 § 1, it is then necessary to clarify whether it is the conditions of execution at the time when the measure – such as a person’s detention – was ordered or the conditions of execution during a later period to be assessed by the Court which are relevant for assessing whether the measure in question was a penalty within the meaning of Article 7 § 1.
205. A rare case in which the Court was confronted with such a situation was the application of W.P. v. Germany (cited above, §§ 76-80). In that case, the Court had considered that the conditions of the applicant’s preventive detention had substantially changed during the period covered by the same detention order. As shown above (see paragraph 140), while the Court had struck the application out of the list in respect of the alleged breach of Article 7 § 1 following the Government’s unilateral declaration acknowledging a violation of this provision during the time in which Mr W.P. was detained in prison, it found that Mr W.P.’s detention had complied with Article 7 § 1 in the period in which he had been detained in a new preventive detention centre. Accordingly, in the assessment of whether the measure in question, namely Mr W.P.’s preventive detention, was to be classified as a penalty, the Court, as in the context of Article 5 § 1, took into account changes in the conditions of detention occurring during the execution of the measure on the basis of the same detention order.
206. This approach implies that in some rare cases, especially if national law does not qualify a measure as a penalty and if its purpose is therapeutic, a substantial change, in particular in the conditions of execution of the measure, can withdraw the initial qualification of the measure as a penalty within the meaning of Article 7 of the Convention, even if that measure is implemented on the basis of the same order.
207. The Grand Chamber considers that the wording of Article 7 § 1, second sentence, according to which no heavier penalty may be “imposed” than the one that was applicable at the time the criminal offence was committed, does not stand in the way of an interpretation of this provision which has regard to the fact that a measure may continue to be “imposed” over a longer period of time while changing its manner of execution, and thus its characteristics, during its imposition.
208. Furthermore, the Court considers that it is only in a position to fully assess whether a measure amounts in substance to a penalty in the light of the criteria developed in its case-law (see paragraph 203 above) if it takes into account changes in the actual execution of a measure on the basis of the same order. It notes that some of these criteria can be described as “static” or not susceptible to change after the point in time when the measure was ordered, particularly the criterion whether the measure in question was imposed following conviction for a “criminal offence” or that of the procedures involved in its making. In contrast, other criteria, including those of the nature and purpose of the measure and of its severity, can be described as “dynamic” or susceptible to change over time. In order to assess the compliance of a measure with Article 7 § 1 during a given period, the actual manner in which the measure was executed throughout that period must therefore be considered relevant and must be taken into consideration by the Court.
209. Consequently, the relevant point in time, or period, for assessing whether a measure was a penalty within the meaning of Article 7 § 1 is the period of time at issue in the proceedings before this Court, that is between 20 June 2013 and 18 September 2014, and not the time when the measure was ordered.
2. Application of these principles to the present case
(a) The Court’s assessment in previous preventive detention cases
210. When examining whether the impugned preventive detention of the applicant should be classified as a penalty for the purposes of Article 7 § 1, second sentence, the Court observes at the outset that it was called upon to determine whether a person’s preventive detention amounted to a penalty in a number of applications lodged against Germany since 2004. These applications concerned different preventive detention regimes, which evolved in respect of both their legal basis and their implementation in practice. In accordance with its case-law, the Court had to interpret the notion of penalty in Article 7 § 1 autonomously in these cases, also bearing in mind the classification of comparable measures in other Contracting Parties to the Convention (see M. v. Germany, cited above, § 126; Glien, cited above, § 124; and Bergmann, cited above, §§ 161-163).
211. In the case of M. v. Germany (cited above, §§ 124-33), the Court concluded that preventive detention ordered and enforced in accordance with the German Criminal Code as it stood at the relevant time, that is detention in separate prison wings and without a mental disorder being a condition for such detention, had to be classified as a penalty. In the case of Glien (cited above, §§ 120-30) it found that the applicant’s preventive detention as enforced in the transitional period between the Federal Constitutional Court’s judgment of 4 May 2011 and the application in practice of the Preventive Detention (Distinction) Act (see paragraphs 76-80 above), which entered into force on 1 June 2013 and entailed detention under a fresh regime in new preventive detention centres, still constituted a penalty for the purposes of Article 7 § 1. It considered that there had not been any substantial changes in the implementation of Mr Glien ’s preventive detention, which was still being executed in a separate prison wing, compared with the situation at issue in M. v. Germany.
212. In the case of Bergmann (cited above, §§ 151-83), the Court was finally called upon to determine whether the subsequently prolonged preventive detention of the applicant, which was executed after the expiry of the above-mentioned transitional period, in accordance with the Preventive Detention (Distinction) Act, in a new separate centre for persons in preventive detention, that is to say in accordance with the new preventive detention regime, was compatible with Article 7 § 1 of the Convention.
213. The Court found that preventive detention, as a rule, still was to be considered as a penalty for the purposes of Article 7 § 1. However, in cases such as that of the applicant, where preventive detention was extended because of, and with a view to the need to treat a mental disorder, which was a new precondition for subsequently extending his preventive detention, its nature and purpose changed to such an extent that it was no longer to be classified as a penalty within the meaning of Article 7. Such preventive detention thus complied with Article 7 (see also W.P. v. Germany, cited above, §§ 76-79).
214. In determining whether the subsequently imposed preventive detention of the applicant in the present case constituted a penalty for the purposes of the second sentence of Article 7 § 1, the Court, as explained above, considers it necessary to analyse the characteristics of the measure during the period at issue before it, that is between 20 June 2013 and 18 September 2014. During that period, the applicant, who was being detained in Straubing, was placed in a new preventive detention centre. The Court notes that the present case has this element in common with the cases of Bergmann (cited above) and W.P. v. Germany (cited above), which, for their part, concerned preventive detention which was subsequently prolonged beyond the former statutory maximum duration.
(b) Measure imposed following conviction for a criminal offence
215. As for the question whether the measure at issue was imposed following conviction for a “criminal offence”, the Court notes that the preventive detention order against the applicant had not been made together with his conviction (as in the above-mentioned Bergmann case), but had been imposed in a separate judgment in 2012, several years after the applicant’s conviction in 1999. However, the order was nevertheless linked to the conviction – and thus “following” the latter – as it was a precondition for the preventive detention order under section 7(2) of the Juvenile Courts Act (see paragraph 56 above) that the young offender concerned had been imposed a sentence of at least seven years for a felony, in particular, against life, physical integrity or sexual self-determination. Moreover, under that provision, the procedure concerning the offender’s preventive detention had to be based on evidence obtained prior to the end of the term of imprisonment imposed for the said offence.
216. The Court would add that the Regional Court, in its judgment of 3 August 2012, had not ordered the applicant’s preventive detention in a particular institution but had only generally ordered his preventive detention. It was clear when the Regional Court made its order that, following the judgment of the Federal Constitutional Court of 4 May 2011 which the Regional Court applied, the applicant was to be transferred as soon as possible to an institution offering him not only conditions more assimilated to general living conditions but, in particular, therapeutic provision tailored to his needs as a mental-health patient. The preventive detention order therefore covered the applicant’s detention in the new preventive detention centre in the period here at issue.
(c) Characterisation of the measure under domestic law
217. As regards the characterisation of preventive detention under domestic law, the Court notes that in Germany such detention is not, and has never been, considered as a penalty to which the constitutional absolute ban on retrospective punishment applies. In its leading judgment of 4 May 2011, the Federal Constitutional Court again confirmed that preventive detention, contrary to this Court’s findings concerning the notion of penalty under Article 7 of the Convention, was not a penalty for the purposes of the absolute prohibition on the retrospective application of criminal law under the Basic Law (see paragraph 74 above). It further found that the provisions of the Criminal Code on the imposition and duration of preventive detention as they then stood failed, however, to meet the constitutional requirement of differentiating between purely preventive measures of correction and prevention, such as preventive detention, and penalties, such as prison sentences (see paragraphs 70-72 above). The court therefore ordered the legislature to amend the provisions on preventive detention in the Criminal Code so as to reflect that difference.
218. In line with this requirement, the legislative amendments to the Criminal Code introduced by the Preventive Detention (Distinction) Act serve to clarify and extend the differences between the way in which preventive detention and prison sentences are enforced (see in particular the new Article 66c of the Criminal Code). They thus confirm and expand the differences between measures of correction and prevention, such as preventive detention, under the provisions of the Criminal Code and measures which are classified as penalties under the long-established twin ‑ track system of sanctions in German criminal law (see M. v. Germany, cited above, §§ 45-48 and 125).
(d) Nature and purpose of the measure
219. As for the nature and purpose of the measure of preventive detention, the Court observes that at the material time, the applicant was detained in the Straubing preventive detention centre. His deprivation of liberty was thus not effected in an ordinary prison in a separate wing for persons in preventive detention as was the case for the applicants in the above-mentioned M. v. Germany and Glien cases, but in an institution comparable to that at issue in the Bergmann case. He was further deprived of his liberty as a person of unsound mind and was provided with treatment with a view to addressing his mental disorder (see paragraphs 142 et seq. above).
220. The Court observes that there were considerable differences between the deprivation of liberty in an ordinary prison and the applicant’s preventive detention in the new preventive detention centre set up to comply with the new preventive detention regime (see in particular Article 66c of the Criminal Code and the Bavarian Preventive Detention Execution Act, paragraphs 76-81 above). In that centre, the applicant was being deprived of his liberty under considerably improved material conditions compared to ordinary prison conditions, with a view to differentiating between those two forms of detention, as required by the German Constitution. He was, for instance, detained in a larger cell measuring 15 m² and including a kitchen unit and a separate bathroom and could move more freely within the centre, which provided for rooms and outside spaces for occupational and recreational activities (see paragraph 46 above).
221. More importantly, the Court notes that in the Straubing preventive detention centre, as in other such centres (see paragraphs 47 and 81 above), an increased number of specialised therapeutic staff provided inmates such as the applicant with individualised medical and therapeutic treatment in accordance with an individual treatment plan. The comprehensive therapeutic provision for the applicant, addressing his mental condition, now included, in particular, one-to-one or group social therapy, participation in an intensive treatment programme for sexual offenders and therapy administered by an external psychiatrist. The Court notes that it was only after the period covered by the proceedings here at issue that the applicant accepted a part of the treatment offers made to him (see paragraph 47 above). However, the Court does not have any reason to doubt that the treatment offers made to the applicant were adequate, sufficient and available to the applicant at the relevant time. It is therefore of no impact to its findings on the nature and purpose of the applicant’s preventive detention that he did not immediately accept the offers made to him.
222. As it has been noted in previous judgments (see, in particular, Glien, cited above, §§ 98-99; and Bergmann, cited above, §§ 121-23), following the Court’s judgment in the case of M. v. Germany (cited above) and the Federal Constitutional Court’s judgment of 4 May 2011 responding to it, the domestic authorities have taken wide-ranging measures at the judicial, legislative and executive levels with a view to tailoring the execution of preventive detention to the requirements both of the Constitution and the Convention. Substantive measures have been taken at considerable cost in order to provide detainees in preventive detention with individual and intensive psychiatric, psychotherapeutic or socio-therapeutic treatment aimed at reducing the risk they pose to the public.
223. The Court, having regard to the material before it, is satisfied that the said measures taken by the domestic authorities entailed a substantive improvement of the conditions in which persons remanded in preventive detention are detained. Treatment aimed at reducing the threat these persons pose to the public to such an extent that the detention may be terminated as soon as possible is now at the heart of that form of detention, both in the interest of the detainee and in that of the public.
224. The Court agrees in this context with the Government’s view that the reform of the German preventive detention system was conducted and put in practice against the background of a dialogue between this Court and the Federal Constitutional Court (see in particular the Court’s judgments in the cases of M. v. Germany, Jendrowiak, cited above; Schmitz v. Germany, no. 30493/04, 9 June 2011; Glien and Bergmann, cited above; and the judgments and decisions of the Federal Constitutional Court of 4 May 2011, file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10, cited above, of 15 September 2011; file no. 2 BvR 1516/11, cited above of 6 February 2013; file nos. 2 BvR 2122/11 and 2 BvR 2705/11 of 11 July 2013; file nos. 2 BvR 2302/11 and 2 BvR 1279/12, cited above, and of 29 October 2013, file no. 2 BvR 1119/12).
225. In the Court’s view, the changes to the manner of execution of preventive detention are fundamental for persons who, like the applicant, are detained as mental-health patients. The Court attaches decisive importance, in this context, to the fact that under sections 7(2) and 105(1) of the Juvenile Courts Act read in conjunction with the requirements set out in the Federal Constitutional Court’s judgment of 4 May 2011, his subsequent preventive detention could, at the relevant time, only be ordered under a new, additional precondition, namely that he was found to suffer from a mental disorder.
226. This condition was independent of the initial sanction imposed for a criminal offence. It thus distinguishes the type of preventive detention in the applicant’s situation from preventive detention of dangerous offenders which was not ordered (or prolonged) subsequently. For the detention of this group of persons it is not required under domestic law that they suffer from mental disorders and they are not detained for the purposes of treating such disorders.
227. For persons detained as medical health patients, the preventive purpose pursued by the amended preventive detention regime carries decisive weight. The Court does not overlook the fact that also in respect of this group of persons remanded in preventive detention, the link between the measure and the offence(s) in regard of which it was ordered is not completely severed. It remains a precondition for ordering or prolonging preventive detention subsequently that the person concerned was found guilty of a serious offence. However, having regard to the setting in which preventive detention orders are executed under the new regime, the Court is satisfied that the focus of the measure now lies on the medical and therapeutic treatment of the person concerned. The medical and therapeutic provision was central to the specific measures of care provided to the applicant. This fact altered the nature and purpose of the detention of persons such as the applicant and transformed it into a measure focused on the medical and therapeutic treatment of persons with a criminal history (cf. also Bergmann, cited above, §§ 164-177).
228. The Court would clarify in that context that, in line with the findings in the judgment in the case of Bergmann (ibid., § 181) as well as its previous case-law (see M. v. Germany, cited above, §§ 124-32), “ordinary” preventive detention which is not executed with a view to treating the detainee’s mental disorder, even if implemented in accordance with the new legislative framework, still constitutes a penalty for the purposes of Article 7 § 1 of the Convention. The improved material conditions and care do not, in these circumstances, suffice to erase the factors indicative of a penalty.
(e) Procedures involved in the making and implementation of the measure
229. As for the procedures involved in the making and implementation of the preventive detention order against the applicant, the Court observes that the applicant’s preventive detention was imposed by the (criminal) trial courts; its subsequent implementation was to be determined by the courts responsible for the execution of sentences, that is to say courts also belonging to the criminal justice system.
230. The Court finds that it might have highlighted the therapeutic nature of the measure if the civil courts had been entrusted with orders on the confinement of particularly dangerous persons with a criminal history suffering from a mental disorder, as was foreseen under sections 1 and 4 of the Therapy Detention Act (see paragraph 85 above), which does not appear to have acquired any importance in practice.
231. However, the Court takes account of the Government’s argument that the courts belonging to the criminal justice system were particularly experienced in assessing the necessity of confining mental-health patients who had committed a criminal act as they also dealt with decisions concerning detention in psychiatric hospitals under Article 63 of the Criminal Code (see paragraph 84 above; cf. also Bergmann, cited above, § 178). It further observes that the criteria for the imposition of preventive detention would have been the same, irrespective of whether the civil or the criminal courts, which both belong to the courts with ordinary jurisdiction, had jurisdiction to impose that measure.
232. Finally, the Court observes, on the matter of the severity of the measure against the applicant, that the preventive detention order against him entailed detention without any maximum duration. It therefore remained among the most serious measures which could be imposed under the Criminal Code. The Court notes in that context that both the Council of Europe Annual Penal Statistics and the statistics submitted by the Government confirm that preventive detention orders are imposed as an ultima ratio measure. In March 2017, 591 persons were in preventive detention in Germany, a country of some 81 million inhabitants.
233. Nor does the Court overlook the fact that the applicant was a young adult when he committed his first offence, with regard to which his preventive detention at issue was ordered in 2012, when he was thirty-five years old. He could therefore potentially be remanded in detention for a longer period of time than persons against whom such an order had been made at a more advanced age.
234. However, as the Court has repeatedly confirmed (see paragraph 203 above), the severity of the measure is not decisive in itself. Moreover, unlike in the case of prison sentences, the detention had no minimum duration either. The applicant’s release was not precluded until after a certain lapse of time, but was dependent on the courts’ finding that there was no longer a high risk that the applicant would commit the most serious types of violent crimes or sexual offences as a result of his mental disorder.
235. The duration of the applicant’s detention thus depended to a considerable extent on his cooperation in necessary therapeutic measures. The Court notes in that context that the applicant’s transfer to the new Straubing preventive detention centre placed him in a better position to work towards his release by means of therapies tailored to his needs. Furthermore, his detention was subject to regular judicial reviews at relatively short intervals (see paragraph 64 above). That increased the probability that the measure would not last overly long. The severity of the preventive detention order was alleviated by these factors (cf. also Bergmann, cited above, §§ 179-80).
236. In view of the foregoing considerations, the Court, having assessed the relevant factors in their entirety and making its own assessment, considers that the preventive detention implemented in accordance with the new legislative framework in the applicant’s case during the period here at issue can no longer be classified as a penalty within the meaning of Article 7 § 1. The applicant’s preventive detention was imposed because of and with a view to the need to treat his mental disorder, having regard to his criminal history. The Court accepts that the nature and purpose of his preventive detention, in particular, was substantially different from those of ordinary preventive detention executed irrespective of a mental disorder. The punitive element of preventive detention and its connection with the criminal offence committed by the applicant was erased to such an extent in these circumstances that the measure was no longer a penalty.
237. In view of these findings, it is not necessary to examine whether, by the order for and execution of the applicant’s subsequent preventive detention, a heavier measure was imposed on the applicant than the one that was applicable at the time he committed his criminal offence.
238. The Court observes that its findings are in line with its conclusions in the case of Bergmann (cited above, §§ 182-83). As in its previous case ‑ law (see, inter alia, M. v. Germany, cited above, §§ 122 et seq., on the one hand, and K. v. Germany, no. 61827/09, §§ 79 et seq., 7 June 2012 and G. v. Germany, no. 65210/09, §§ 70 et seq., 7 June 2012, on the other), it does not consider that the differences between the subsequent prolongation of preventive detention beyond a former statutory time-limit (at issue in the cases of Bergmann and W.P. v. Germany, both cited above) and the subsequent imposition of such detention in a judgment separate from and subsequent to the trial court’s judgment are such as to change the assessment of the compliance of these measures with the Convention.
239. There has accordingly been no violation of Article 7 § 1 of the Convention.
V. ALLEGED LACK OF A SPEEDY JUDICIAL REVIEW
240. The applicant further complained in application no. 10211/12 that the domestic courts had not decided speedily in the proceedings in which he had sought to challenge the lawfulness of his provisional preventive detention. He relied on Article 6 § 1 of the Convention.
241. As the Chamber had found, proceedings for judicial review of the lawfulness of detention such as the proceedings at issue fall to be examined under Article 5 § 4 of the Convention, which reads as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
242. The Government contested that argument.
243. The Chamber found that the period to be examined had started on 29 June 2011, when the Regional Court had received the applicant’s appeal against the detention order of 6 May 2011. It had ended on 30 May 2012 when the Federal Constitutional Court’s decision of 22 May 2012 had been served on counsel for the applicant. It had thus lasted eleven months and one day over three levels of jurisdiction. The proceedings before the Federal Constitutional Court as such had lasted eight months and twenty-two days.
244. Having regard, in particular, to the special features of constitutional court proceedings and to the complexity of the proceedings before the Federal Constitutional Court, the Chamber found that the speediness requirement had nevertheless also been complied with in the proceedings before that court. It stressed that the different role of the Constitutional Court within the domestic legal order had been reflected by the fact that a detainee could obtain a fresh judicial review of a detention order before the ordinary courts even while a previous set of proceedings before the Constitutional Court was still pending.
245. The applicant argued that the length of the proceedings in which he had sought to challenge the lawfulness of his provisional preventive detention had violated the speediness requirement of Article 5 § 4 of the Convention.
246. The applicant took the view that the total length of the proceedings concerning the lawfulness of his provisional preventive detention had been excessive. From the time when, on 27 June 2011, he had lodged his appeal against the decision of the Regensburg Regional Court of 6 May 2011, some eleven months had passed before the Federal Constitutional Court, by decision of 22 May 2012 served on his counsel on 30 May 2012, had taken its final decision on the lawfulness of his provisional preventive detention. In particular, the proceedings before the Federal Constitutional Court, which had declined to consider his constitutional complaint of 7 September 2011, had lasted eight months and twenty-three days, an unreasonably long period.
247. The applicant contested the assertion that the special features of constitutional complaint proceedings had justified the longer duration of proceedings. The Constitutional Court had only had to examine the compliance of the impugned decisions with the fundamental right to liberty and could therefore be expected to have taken a decision within a reasonable time, as the Regional Court and the Court of Appeal had done. The proceedings before that court had only been of average complexity as the judges adjudicating on the applicant’s complaint had been familiar with his case, having adopted the leading judgment of 4 May 2011 in the applicant’s case only a year before. Moreover, there had been a long delay between the applicant’s reply of 1 January 2012 to the submissions of the institutions to whom the constitutional complaint had been communicated and the delivery of the Constitutional Court’s decision on 22 May 2012. He claimed that he could not have filed another appeal while the proceedings before the Constitutional Court were pending.
248. In the Government’s view, the proceedings at issue had been conducted speedily, as required by Article 5 § 4.
249. The Government emphasised that at the relevant time, the German courts had been obliged to adapt German law on subsequent preventive detention as closely as possible to the requirements of the Convention. In the period between 4 May 2011 and 1 June 2013 in which the legislature had not yet amended the German preventive detention system, they had been alone in attempting to accomplish that task.
250. The Government referred to and agreed with the Chamber’s findings in respect of Article 5 § 4. They argued, in particular, that the proceedings before the Federal Constitutional Court had complied with the speediness requirement. The proceedings had been complex in that the Constitutional Court had had to assess for the first time whether the ordinary courts had applied its leading judgment of 4 May 2011 correctly. Furthermore, account had to be taken of the special features of constitutional court proceedings and the special role of the Federal Constitutional Court in the German judicial system. Moreover, the applicant had had, and had taken, the opportunity to lodge a new request with the Regional Court for judicial review of his provisional preventive detention while the proceedings at issue had been pending before the Federal Constitutional Court.
C. The Grand Chamber’s assessment
1. Recapitulation of the relevant principles
251. The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons the right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and the ordering of its termination if it proves unlawful (see Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009, and Idalov v. Russia [GC], no. 5826/03, § 154, 22 May 2012).
252. The question of whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case (see, inter alia, R.M.D. v. Switzerland, 26 September 1997, § 42, Reports 1997 ‑ VI; Fešar v. the Czech Republic, no. 76576/01, § 68, 13 November 2008; and Stephens v. Malta (no. 2), no. 33740/06, § 84, 21 April 2009) and – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – including the complexity of the proceedings, their conduct by the domestic authorities and by the applicant and what was at stake for the latter (see Mooren, cited above, § 106, and the references therein; S.T.S. v. the Netherlands, no. 277/05, § 43, ECHR 2011; and Shcherbina v. Russia, no. 41970/11, § 62, 26 June 2014).
253. The Court accepts that the complexity of medical – or other – issues involved in an examination of an application for release can be a factor which may be taken into account when assessing compliance with the requirement of “speediness” laid down in Article 5 § 4. It does not mean, however, that the complexity of a given dossier – even exceptional – absolves the national authorities from their essential obligations under this provision (cf. Musiał v. Poland [GC], no. 24557/94, § 47, ECHR 1999 ‑ II; Baranowski, cited above, § 72; and Frasik v. Poland, no. 22933/02, § 63, ECHR 2010 (extracts)).
254. Article 5 § 4 does not compel the Contracting Parties to set up more than one level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release. Nevertheless, a State which offers a second level of jurisdiction must in principle accord to the detainees the same guarantees on appeal as at first instance (see Navarra v. France, 23 November 1993, § 28, Series A no. 273 ‑ B; Khudobin v. Russia, no. 59696/00, § 124, ECHR 2006 ‑ XII (extracts); and S.T.S. v. the Netherlands, cited above, § 43), including as regards the speediness of the review by the appellate body of a detention order imposed by a lower court (see Piotr Baranowski v. Poland, no. 39742/05, § 63, 2 October 2007). The same applies to constitutional courts which decide on the legality of detention and order the release of the person concerned if the detention is not lawful (cf. Smatana v. the Czech Republic, no. 18642/04, § 123, 27 September 2007; and Mercan v. Turkey (dec.), no. 56511/16, § 24, 8 November 2016).
255. In order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to perform an overall assessment where the proceedings were conducted at more than one level of jurisdiction (see Navarra, cited above, § 28, and Mooren, cited above, § 106). Where the original detention order was imposed by a court (that is, by an independent and impartial judicial body) in a procedure offering appropriate guarantees of due process, and where the domestic law provides for a system of appeal, the Court is prepared to tolerate longer periods of review in proceedings before a second-instance court (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007, and Shcherbina, cited above, § 65). These considerations also apply in respect of complaints under Article 5 § 4 concerning proceedings before constitutional courts which were separate from proceedings before ordinary courts under the relevant provisions of the law on criminal procedure (see Žúbor v. Slovakia, no. 7711/06, § 89, 6 December 2011).
256. The Court has laid down relatively strict standards in its case-law concerning the question of State compliance with the speediness requirement. An analysis of its case-law reveals that in appeal proceedings before the ordinary courts which follow a detention order imposed by a court at first instance, delays exceeding three to four weeks for which the authorities must be held responsible are liable to raise an issue under the speediness requirement of Article 5 § 4 unless a longer period of review was exceptionally justified in the circumstances of the case (cf., inter alia, G.B. v. Switzerland, no. 27426/95, §§ 27 and 32-39, 30 November 2000 – which determined that a duration of thirty-two days for a federal attorney and a federal court to decide on the applicant’s request for release constituted a breach of Article 5 § 4; Lebedev, cited above, §§ 98-102 – which determined the authorities’ responsibility for twenty-seven days of the overall time it took the appeal court to decide on the applicant’s request for release, which was incompatible with Article 5 § 4; for further examples see Piotr Baranowski, cited above, § 64, and Shcherbina, cited above, § 65).
2. Application of these principles to the present case
257. As regards the period to be taken into consideration in determining whether the respondent State complied with the speediness requirement under Article 5 § 4, the Court observes that the period started on 29 June 2011, when the Regional Court received the applicant’s appeal against the detention order of 6 May 2011. It ended on 30 May 2012 when the Federal Constitutional Court’s decision of 22 May 2012 was served on counsel for the applicant (for the calculation of the period, cf. Smatana, cited above, § 117, and the references therein). It thus lasted eleven months and one day over three levels of jurisdiction.
258. The Court observes that the applicant contested the compliance of the length of the proceedings before the Federal Constitutional Court (eight months and twenty-three days) and of the resulting total duration of the proceedings with Article 5 § 4; he does not appear to argue that the proceedings before the ordinary courts failed to comply with the speediness requirement under that provision.
259. The Court agrees that the Regional Court, which took the decision refusing to amend its detention order of 6 May 2011 five days after having received the applicant’s appeal on 29 June 2011, namely on 4 July 2011, conducted the proceedings before it with expedition.
260. Following the Regional Court’s decision, the Court of Appeal, having obtained the prosecution and defence submissions, took its decision on the applicant’s appeal on 16 August 2011; the proceedings before that court thus lasted forty-three days.
261. It does not appear that the applicant, who supplemented grounds for his appeal on five occasions (see paragraph 18 above), substantially contributed to the duration of the proceedings before that court.
262. The Court considers, however, that the proceedings before the Court of Appeal were relatively complex, both from a legal and a factual point of view. Following the Federal Constitutional Court’s reversal of its case-law in a leading judgment, it was necessary for the Court of Appeal to examine whether under the new restrictive standards set by the Constitutional Court there continued to be weighty grounds for expecting that the applicant’s subsequent preventive detention would be ordered. It had become necessary, in particular, to determine whether there were sufficient grounds for assuming that the applicant suffered from a mental disorder. Such an assessment had not been necessary under the Juvenile Courts Act as interpreted previously. In making that assessment in the applicant’s case, the Court of Appeal had regard to the findings of fact made by the Regensburg Regional Court in its judgment of 22 June 2009, as well as to the reports of four medical experts ordered in the course of these and previous proceedings. It thoroughly reasoned its decision ordering the applicant’s provisional preventive detention.
263. Having regard to the complexity of the proceedings and the fact that the Court of Appeal reviewed, as a court of second instance, a detention order imposed and reviewed by a first-instance court –in which situation the Court is prepared to tolerate longer periods of review (see paragraph 255 above) – the Court finds that the proceedings before the Court of Appeal still complied with the speediness requirement in the circumstances of the case.
264. The Court further observes that on 29 August 2011 the Court of Appeal took its decision on the applicant’s complaint regarding a breach of his right to be heard and his objection to the decision of 16 August 2011; that decision was served on counsel for the applicant on 6 September 2011. The proceedings thus lasted twenty-one days which, in the light of the above considerations, cannot be considered as excessive.
265. As regards the proceedings before the Federal Constitutional Court, the Court notes that the applicant lodged his constitutional complaint with that court on 7 September 2011. On 25 October 2011, that is to say within forty-seven days, the Federal Constitutional Court took an interim decision refusing the applicant’s request for stay of execution of the detention order against him. Its decision of 22 May 2012, declining to consider the complaint was served on counsel for the applicant on 30 May 2012. The proceedings before that court thus lasted a total period of eight months and twenty-three days.
266. In determining whether, in view of this relatively long period, the applicant’s right to a speedy decision was respected in the circumstances of the present case, the Court accepts that the proceedings before the Federal Constitutional Court were complex. Following its leading judgment of 4 May 2011, which had been delivered, inter alia, in respect of the applicant, that court had to assess for the first time whether the ordinary courts’ interpretation and application of that leading judgment complied with the Constitution. The court had to determine, in particular, whether the ordinary courts interpreted the new restrictive criteria for imposing preventive detention subsequently, and in particular the requirement that the person concerned suffered from a mental disorder, which involved complex medical and legal issues, in compliance with the constitutional right to liberty.
267. The complexity of the proceedings is also reflected by the fact that the Federal Constitutional Court communicated the 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 and obtained their observations, as well as the applicant’s observations in reply, before taking its decision.
268. The Court finds that the applicant, who 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 dated 28, 24 and 25 November 2011 respectively by submissions dated 1 January 2012, cannot be said to have greatly contributed to the duration of the proceedings before the Federal Constitutional Court.
269. The Federal Constitutional Court, for its part, was not inactive during the period in which the proceedings were pending before it. It conducted the proceedings with due regard to the importance of the applicant’s right to liberty in that it fairly quickly issued a reasoned interim decision on his request for a stay of execution of the detention order against him and communicated the constitutional complaint, asking several parties to submit their observations.
270. The Court further considers that the Federal Constitutional Court conducted the proceedings before it in a different legal context from that of the ordinary courts and that the special features of the proceedings before that court must be taken into account in assessing compliance with the speediness requirement of Article 5 § 4. The Court notes that in its examination of the compliance of a detention order with the fundamental right to liberty, the Constitutional Court also reviews, as do the lower courts, the lawfulness of a complainant’s detention and has jurisdiction to quash the decision of the ordinary courts and, if appropriate, order the release of the detained person if the detention is unlawful (see as an example in this respect the Constitutional Court’s leading judgment of 4 May 2011, paragraphs 68-75 above).
271. However, the Federal Constitutional Court does not carry out its review as an additional instance on the merits, but examines the detention order’s compliance with the Constitution alone. This different role of the Constitutional Court within the domestic legal order is reflected by the fact that under domestic law decisions become final once the last-instance ordinary court has delivered its decision. A detainee may obtain a fresh judicial review of a detention order before the ordinary courts even while a previous set of proceedings before the Constitutional Court is still pending (see paragraph 63 above; compare also Şahin Alpay v. Turkey, no. 16538/17, § 137, ECHR 2018).
272. The Court further observes that the applicant availed himself of this possibility in the present case. Shortly after having lodged his constitutional complaint on 7 September 2011, he submitted a fresh request for judicial review of his provisional preventive detention with the Regional Court on 17 November 2011. The Regional Court and the Court of Appeal examined the applicant’s fresh request and rejected it on the merits on 28 November 2011 and 2 January 2012 respectively, prior to the Constitutional Court’s decision of 22 May 2012 (see paragraph 27 above).
273. In the Court’s view, this possibility does not exempt the Constitutional Court from its obligation under Article 5 § 4 to decide speedily on the lawfulness of the applicant’s detention in order to guarantee that the right to a speedy decision remains practical and effective (cf. also, mutatis mutandis, Smatana, cited above, §§ 124 and 131). However, taking this element into account in the overall assessment of whether a decision has been given speedily is in line with the rationale behind its case-law (cited in paragraph 255 above) tolerating longer periods of review in proceedings before a second-instance court where the original detention order was imposed by a court in a procedure offering appropriate guarantees of due process.
274. The Court considers that these considerations apply a fortiori to proceedings before a constitutional court as an additional instance charged with examining compliance with the fundamental right to liberty of a detention alone and during which fresh proceedings for judicial review before the ordinary courts can already be initiated. It would add that the relatively strict standards in its case-law concerning the question of State compliance with the speediness requirement, as described in a number of cases above (see paragraph 256), were not developed in cases concerning proceedings before domestic constitutional courts challenging the lawfulness of the complainant’s detention.
275. In sum, the Court, having regard to the complexity of the proceedings before the Federal Constitutional Court in the instant case, the conduct of the proceedings, including the adoption of a reasoned interim decision on the continuation of the applicant’s detention by that court and the special features of the proceedings before that court, which permitted the applicant to obtain a fresh judicial review of his detention by the ordinary courts while the proceedings at issue were still pending before the Constitutional Court, finds that in the particular and specific circumstances of the case (see paragraphs 270 and 271 above), the requirement of speediness under Article 5 § 4 has nevertheless been complied with.
276. In the light of these findings, the Court, making an overall assessment, further considers that the applicant’s right to a speedy decision was complied with in the overall proceedings concerning the lawfulness of his provisional preventive detention.
277. There has accordingly been no violation of Article 5 § 4 of the Convention.
VI. ALLEGED LACK OF IMPARTIALITY OF JUDGE P.
278. The applicant finally complained that Judge P. had been biased against him in the main proceedings before the Regensburg Regional Court concerning the order for his “retrospective” preventive detention. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”
279. The Government contested that argument.
280. The Chamber, which had considered Article 6 § 1 to be applicable under its civil head to the proceedings concerning the lawfulness of the order for the applicant’s preventive detention, found that in the circumstances of the present case, there had neither been personal prejudice on the part of Judge P. nor objectively justified doubts as to his impartiality, for the purposes of Article 6 § 1, in the proceedings at issue.
281. In the applicant’s submission, the Regensburg Regional Court, which had ordered his preventive detention with Judge P.’s participation, had not been impartial, as required by Article 6 § 1 of the Convention.
282. The applicant argued that there was sufficient evidence to establish that Judge P. had not been impartial on the basis of his personal conviction and behaviour (subjective test). Judge P. had warned the applicant’s female defence lawyer to be careful after the applicant’s release not to find him standing in front of her door waiting to “thank” her in person. As the Chamber had rightly found, that remark was to be understood as meaning that P. considered it a risk that the applicant would commit a serious violent or sexual offence against his lawyer if at liberty.
283. The applicant stressed that Judge P. had not made his comment about the threat which the applicant allegedly posed while giving reasons for the Regional Court’s judgment of 22 June 2009. The impugned remark had been made in a conversation concerning the possibility of the applicant’s subsequent transfer to a psychiatric hospital which Judge P. had had with the applicant’s female defence lawyer after the Regional Court had delivered the said judgment. In that context, that danger had been completely irrelevant and there had not been any reason to make the impugned remark. Judge P. had thus unduly interfered in the lawyer-client relationship with his defence counsel and had failed to act in a professional manner. He had therefore been partial and the applicant had had reason to believe that Judge P.’s lack of impartiality subsisted in the proceedings at issue in which P. had again been on the bench.
284. The Government argued that, as the Chamber had rightly found, the applicant’s right to a fair trial before an impartial tribunal under Article 6 § 1 of the Convention had not been breached.
285. The Government agreed that the remark which Judge P. had allegedly made in 2009 to the applicant’s then defence counsel had meant that he had considered that there was a risk that the applicant would commit a serious violent or sexual offence against his lawyer if released. However, there was no evidence that Judge P. had been personally prejudiced against the applicant. He had made his impugned remark in the course of a confidential meeting immediately after the Regional Court, of which he was a member, had ordered the applicant’s subsequent preventive detention as there was a high risk of his committing serious offences including murder for sexual gratification if released. The remark had thus been a drastic summary of the assessment of the risk emanating from the applicant which had just been made in the Regional Court’s judgment and it had been made to legal professionals who knew the case and context.
286. Moreover, the fact that Judge P. had somewhat drastically confirmed his conviction that the applicant was dangerous on 22 June 2009 did not raise objectively justified doubts that the judge lacked impartiality in the proceedings at issue, which took place some three years later, ending with the Regional Court’s judgment of 3 August 2012. There was no legitimate reason to fear that Judge P. would not carry out the necessary fresh assessment of the applicant’s dangerousness on the basis of the new evidence produced and under the law as modified by the Federal Constitutional Court’s judgment of 4 May 2011 in the meantime.
C. The Grand Chamber’s assessment
1. Recapitulation of the relevant principles
287. In its judgment of 2 February 2017 in the present case, the Chamber aptly summarised the principles relevant to the present case as follows (ibid., §§ 120-123):
“The Court reiterates that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is to say whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, inter alia, Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 191, ECHR 2003 ‑ VI, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 104, ECHR 2013).
... As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Morel v. France, no. 34130/96, § 41, ECHR 2000 ‑ VI, and Micallef v. Malta [GC], no. 17056/06, § 94, ECHR 2009).
... As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000 ‑ XII, and Micallef, cited above, § 96).
... It cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority (see Ringeisen v. Austria, 16 July 1971, § 97, Series A no. 13, and Diennet v. France, 26 September 1995, § 38, Series A no. 325 ‑ A).”
2. Application of these principles to the present case
288. The Court notes that, in its judgment in the present case, the Chamber gave the following reasons for its finding that the applicant had been heard by an impartial tribunal for the purposes of Article 6 § 1 in the proceedings at issue (ibid., §§ 124-128):
“As regards the alleged lack of impartiality of Judge P. in the present case, the Court observes that the domestic courts examined the case on the assumption that Judge P. could have made the statement in question ... and it will therefore proceed on the basis of the same assumption. It further notes that Judge P. made the impugned statement in the course of a confidential exchange between the judges of the Regional Court and the applicant’s two defence lawyers. That discussion, which took place just after the Regional Court had delivered its first judgment ordering the applicant’s retrospective preventive detention on 22 June 2009, concerned the applicant’s possible future transfer to a psychiatric hospital. It appears uncontested between the parties, and the Court agrees with that interpretation, that the remark allegedly made by Judge P. within that context to the effect that the applicant’s female counsel should be careful that the applicant would not visit and “thank” her when released was to be understood as meaning that Judge P. considered that there was a risk that the applicant would commit a serious violent or sexual offence against his lawyer (similar to the one he had been found guilty of) if released.
... The Court would stress at the outset the importance of professional conduct in the discharge of judicial functions. In determining whether it was established in view of this alleged remark that Judge P. was personally prejudiced against the applicant (see the above-mentioned “subjective test”), the Court attaches decisive weight to the context in which Judge P.’s statement was made. Assuming, as the national courts did, that he actually made the alleged remark, he did so immediately after the Regional Court, of which he was a member, had ordered the applicant’s retrospective preventive detention as it considered that the applicant was still suffering from violent sexual fantasies and that there was a high risk that the applicant would again commit serious sexual offences, including murder for sexual gratification, if released .... In these circumstances, Judge P.’s alleged remark amounted in substance to a confirmation of the Regional Court’s finding in the judgment it had just delivered. The Court therefore is not persuaded that, even assuming that the remark was made, there is sufficient evidence that Judge P. displayed hostility for personal reasons and was thus personally biased against the applicant.
... The Court shall further examine whether Judge P.’s conduct may prompt objectively justified doubts as to his impartiality from the point of view of an external observer (see the above-mentioned “objective test”). It notes that in the proceedings at issue, the Regional Court, including Judge P., had to take a new decision on whether it was necessary to order the applicant’s retrospective preventive detention after the Federal Constitutional Court had quashed its judgment of 22 June 2009 and remitted the case to the Regional Court.
... The Court, having regard to its case-law ..., considers that the mere fact that Judge P. had already been a member of the bench which had made the first order for the applicant’s retrospective preventive detention and moreover, following the quashing of that judgment, had been a member of the bench ordering the applicant’s retrospective preventive detention anew on 3 August 2012, did not suffice to raise objectively justified doubts as to his impartiality.
... The Court further finds that the fact that Judge P., in his impugned remark, allegedly confirmed that he considered the applicant to be dangerous on 22 June 2009 does not raise objectively justified doubts that the judge lacked impartiality in the proceedings at issue here. In these proceedings, which were terminated some three years after the impugned remark, the Regional Court heard fresh evidence in order to determine whether, at that time and under the law as modified by the Federal Constitutional Court’s judgment reversing its previous case-law, the applicant’s retrospective preventive detention had to be ordered. The impugned statement does not give any legitimate reason to fear that Judge P. would not have carried out that necessary fresh assessment of the level of danger that the applicant posed on the basis of the evidence produced and arguments heard in the new proceedings.”
289. The Grand Chamber would stress that assuming that Judge P. actually made the highly inappropriate remark in question, he would have displayed unprofessional behaviour. However, it considers that, for the reasons set out in detail by the Chamber which it endorses, this conduct, in the circumstances of the present case, neither showed that Judge P. was personally biased against the applicant nor that there were objectively justified doubts as to his impartiality in the proceedings at issue.
290. There has accordingly been no violation of Article 6 § 1 of the Convention.
1. Holds, by fifteen votes to two, that there has been no violation of Article 5 § 1 of the Convention on account of the applicant’s preventive detention from 20 June 2013 onwards as a result of the impugned order for his subsequent preventive detention;