CASE OF K v. GERMANY
Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty);Non-pecuniary damage - award
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1957 and is currently detained in Schwalmstadt Prison. 6. On 26 January 1979 the Frankfurt am Main Regional Court convicted the applicant, inter alia, of repeated rape and of two counts of attempted rape, together with dangerous assault respectively, committed against three young women he did not previously know and whom he had seriously beaten or injured with weapons, and sentenced him to three years’ imprisonment. The court found that owing to a sadistic sexual deviation, the applicant had acted with diminished criminal responsibility. 7. On 20 May 1983 the Frankfurt am Main Regional Court convicted the applicant of dangerous assault and sentenced him to two years and six months’ imprisonment. It found that the applicant had caused a knife injury to a prostitute who had resisted sexual intercourse with him. It considered that the sadistic sexual deviation the applicant suffered from had not diminished his criminal responsibility. 8. On 28 August 1987 the Frankfurt am Main Regional Court convicted the applicant, in particular, of four counts of rape, sexual assault and assault and of one count of attempted rape, attempted sexual assault and assault, committed against five drug-addicted prostitutes in 1985 and 1986. It found that the applicant had raped or attempted to rape the five women, had beaten and mistreated them in a torture-like manner and had partly urinated on them or forced them to have obscene photographs taken of them. It sentenced him to eight years and six months’ imprisonment and ordered his placement in a psychiatric hospital (Article 63 of the Criminal Code, see paragraph 51 below). It considered that the applicant suffered from a serious personality disorder and from a sadistic sexual deviation and had committed his offences with diminished criminal responsibility. 9. The Regional Court further found that the applicant was liable to reoffend and was therefore dangerous to the public as long as he was not undergoing therapy. The therapy in question was only possible in a psychiatric hospital. The court considered that the conditions for the applicant’s preventive detention under Article 66 § 1 of the Criminal Code (see paragraphs 41-42 below) were also met. However, owing to the fact that preventive detention only entailed a person’s safe custody, without offering any specific medical and psychological treatment, this measure was clearly less suitable in the applicant’s case than his placement in a psychiatric hospital. Therefore, the court did not order the applicant’s preventive detention in addition to his placement in a psychiatric hospital. 10. The judgment became final in March 1988 and from August 1988 onwards the applicant was initially detained in a psychiatric hospital in Giessen. 11. On 19 February 1992 the Marburg Regional Court ordered that the applicant serve his prison sentence prior to his continued placement in a psychiatric hospital. It argued that the applicant denied the offences he had been found guilty of and refused to undergo therapy. Furthermore, doubts had arisen as to whether he had actually acted with diminished criminal responsibility. 12. The applicant was retransferred to prison on 8 April 1993 and then served his full sentence mainly in Schwalmstadt Prison. 13. In 1994 an expert, C., confirmed that the applicant, who suffered from a borderline personality disorder, had originally been wrongly placed in a psychiatric hospital from a present-day perspective. 14. From 20 October 1995 onwards the applicant, having served his full sentence, was again detained in a psychiatric hospital, initially in Giessen and subsequently in Hanau, on an order of the Frankfurt am Main Regional Court, based on the Regional Court’s judgment of 28 August 1987. In these proceedings, expert L., who had already examined the applicant prior to the Regional Court’s judgment in 1987, confirmed that the applicant, an autistic psychopath, had acted with diminished criminal responsibility and that his placement in a psychiatric hospital had therefore been justified. 15. On 24 July 2007 the Marburg Regional Court terminated the applicant’s detention in a psychiatric hospital (Article 67d § 6 of the Criminal Code, see paragraph 48 below). Having heard evidence from another expert, F., it found that the applicant did not suffer from a serious personality disorder or from a sadistic sexual deviation which diminished his criminal responsibility. It further ordered the applicant’s provisional detention pending the competent court’s decision whether or not he was to be placed in preventive detention retrospectively as the applicant still had a propensity to commit serious offences. The applicant was accordingly detained in Weiterstadt Prison since August 2007. 16. On 8 January 2008 the Frankfurt am Main Court of Appeal quashed the Regional Court’s order for the applicant’s detention. The applicant was released on that day. Shortly afterwards, he harassed a young woman and threatened her presumed partner. 17. Following the applicant’s failure to appear at the hearing before the Frankfurt am Main Regional Court on 22 January 2008 in the proceedings at issue, that court ordered the applicant’s arrest in order to secure the conduct of the proceedings. The applicant has been in detention since that date, first in Weiterstadt Prison and subsequently, since December 2008, in Schwalmstadt Prison. 18. On 9 April 2008 the Frankfurt am Main Regional Court, relying on Article 66b § 3 of the Criminal Code (see paragraph 47 below), ordered the applicant’s preventive detention retrospectively (nachträgliche Sicherungsverwahrung). 19. The Frankfurt am Main Regional Court found that, in accordance with Article 66b § 3 of the Criminal Code, the Marburg Regional Court had terminated the applicant’s placement in a psychiatric hospital on 24 July 2007 pursuant to Article 67d § 6 of the Criminal Code as the requirements for placing him in such a hospital had not been met at the time of that court’s decision. The court further noted that the requirements of Article 66b § 3 (1) of the Criminal Code were met. The order for the applicant’s placement in a psychiatric hospital had been made in the judgment of the Frankfurt am Main Regional Court of 28 August 1987 convicting him, inter alia, of four counts of rape and one count of attempted rape and sentencing him to eight years and six months’ imprisonment. Moreover, the applicant had already been convicted of rape and sentenced to three years’ imprisonment by a judgment of the Frankfurt am Main Regional Court of 26 January 1979. 20. The Regional Court further found that a comprehensive assessment of the applicant, his offences and his development during his placement in a psychiatric hospital revealed that it was very likely that, if released, he would again commit serious sexual offences resulting in considerable psychological or physical harm to the victims (Article 66b § 3 (2) of the Criminal Code). It based its findings on the reports submitted by a psychological expert, D.-S., and a psychiatric external expert, S. Both experts had considered that the applicant was a psychopath suffering from a serious dissocial personality disorder and from a sexual deviation, sadism. There was a high risk that the applicant would commit further violent sexual offences if released. The experts and all the witnesses confirmed that the applicant had not changed throughout his detention and placement in a psychiatric hospital and had not made any serious effort to reflect on his offences. 21. On 21 November 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. It found that Article 66b § 3 of the Criminal Code was compatible with the Basic Law and applied also to cases in which a person’s placement in a psychiatric hospital was terminated because the person concerned had not been suffering from a disorder warranting his or her placement from the outset. 22. On 30 December 2008 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the retrospective order for his preventive detention had violated the prohibition of retrospective punishment under the Basic Law (Article 103 § 2). He argued that Article 66b of the Criminal Code had been applied with retrospective effect to him as, at the time of his conviction, ordering preventive detention retrospectively had not been authorised. In view of the manner in which preventive detention orders were executed in practice, there was no material difference compared to the execution of a prison sentence. Preventive detention therefore had to be treated as a penalty to which the prohibition of retrospective punishment applied. 23. The applicant further submitted that the retrospective order for his preventive detention amounted to the correction of a final judgment of a criminal court without any new facts having emerged. Even though the Frankfurt am Main Regional Court had considered, in its judgment of 1987, that the requirements of Article 66 § 1 of the Criminal Code had been met, it had not ordered his preventive detention. 24. On 5 August 2009 a chamber of three judges of the Federal Constitutional Court declined to consider the applicant’s constitutional complaint – as well as that of another applicant, G., who lodged application no. 65210/09 before this Court – on the grounds that it was ill-founded (file no. 2 BvR 2633/08). 25. The Federal Constitutional Court noted that Article 67d § 6 and Article 66b § 3 had been inserted into the Criminal Code because, under the Federal Court of Justice’s well-established case-law, a person could no longer be detained in a psychiatric hospital under Article 63 of the Criminal Code and had to be released if that person no longer suffered from a condition excluding or diminishing his criminal responsibility. This was considered problematic in cases in which the person concerned, without suffering from the said condition, was still dangerous to the public. 26. The Federal Constitutional Court found that Article 66b § 3 of the Criminal Code and the courts’ decision to order the applicant’s placement in preventive detention retrospectively were compatible with the Basic Law. Article 66b § 3 of the Criminal Code did not breach the ban on the retrospective application of criminal laws imposed by Article 103 § 2 of the Basic Law. That Article applied only to State measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a sanction to compensate for guilt. Unlike such a penalty, preventive detention was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender. For the same reason, Article 66b § 3 of the Criminal Code did not breach the right not to be punished twice for the same offence under the Basic Law. 27. The Federal Constitutional Court further took the view that Article 66b § 3 of the Criminal Code was in conformity with the protection of legitimate expectations guaranteed in a State governed by the rule of law, even if applied to a case such as that of the applicant, who had committed his offences and had been convicted and sentenced prior to the entry into force of the said provision. It considered as compatible with the Basic Law the legislator’s decision whereby the effective protection of the public from very dangerous offenders who were liable to commit serious offences resulting in considerable psychological or physical harm to the victims – which was a paramount public interest – outweighed the offender’s interest in protection of his legitimate expectations. 28. The Federal Constitutional Court noted that the impugned provisions allowed the courts in a case like that of the applicant to amend retrospectively a sanction fixed in a previous final judgment in the light of new evidence (in particular new expert reports), without new facts having come up. It emphasised that the sentencing criminal courts’ decision not to order preventive detention became final even if it later emerged that the courts had erred in considering the offender not to be dangerous. Nevertheless, the retrospective preventive detention order under Article 66b § 3 of the Criminal Code, read in conjunction with Article 67d § 6 of the Criminal Code, entailed only very limited disadvantages of constitutional relevance. In substance, the ordering of a measure of indefinite duration depriving the person concerned of his or her liberty – namely, placement in a psychiatric hospital – was merely replaced, under certain qualified conditions, by the ordering of a different such measure of indefinite duration, namely preventive detention. Any remaining disadvantages for the offender in the protection of his legitimate expectations were outweighed by the paramount interest of the public pursued by the provisions in question. 29. The Federal Constitutional Court further found that Article 66b § 3 of the Criminal Code was compatible with the applicant’s right to liberty under the Basic Law (Article 2 § 2). In order to protect the right to life, physical integrity and liberty of citizens the legislator was authorised, within the limits set by the principle of proportionality, to deprive of his liberty a person who could be expected to violate the citizens’ said rights. 30. In Schwalmstadt Prison, persons in preventive detention are placed in a separate building from prisoners serving their sentence. They have certain minor privileges compared with convicted offenders serving their sentence (see, for instance, M. v. Germany, no. 19359/04, § 41, ECHR 2009). As regards therapeutic measures, persons held in preventive detention in Schwalmstadt Prison are offered a weekly discussion group proposing ideas for recreational activities and for structuring daily life. They are further offered discussions with an external psychiatrist once per month as well as psychological or psychotherapeutic measures and social training considered suitable for them. 31. When placed in preventive detention, the applicant was not motivated to undergo therapy. He denied the offences he had been convicted of and considered himself to be detained unlawfully. Therefore, he had not been transferred to a social therapeutic department of another prison. He worked in prison in 2009 and has been out of work since then. In 2010 he participated in a social training course. 32. On 15 April 2010 the Marburg Regional Court dismissed the applicant’s request to suspend the execution of his preventive detention and to grant probation. 33. On 1 July 2010 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal against that decision. It found that there was a risk that the applicant would commit further violent sexual offences if released (Article 67d § 2 of the Criminal Code; see paragraph 50 below). Having regard to this Court’s judgment in the case of M. v. Germany (cited above), the Court of Appeal took the view that the question of whether the applicant’s preventive detention breached the prohibition of retrospective punishment could not be examined in the present proceedings concerning the execution of the applicant’s preventive detention. That issue could only be dealt with following a reopening of the proceedings in which that detention had been ordered. 34. Following the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 52-55 below), the applicant again requested the Marburg Regional Court to order his release. On 30 August 2011 the Marburg Regional Court refused to suspend the applicant’s preventive detention, ordered retrospectively on 9 April 2008, and to grant probation. Having regard to the expert reports obtained in those proceedings, it found that it could not be expected that the applicant would not commit any further unlawful acts on his release (Article 67d § 2 of the Criminal Code). There was, on the contrary, a risk that the applicant, owing to specific circumstances relating to his person and his conduct in prison, would commit the most serious crimes of violence or sexual offences soon after his release from prison. The stricter standards for a prolongation of his preventive detention set up by the Federal Constitutional Court in its judgment of 4 May 2011 were therefore met. 35. The Regional Court considered, in particular, that according to the pertinent findings of the Federal Constitutional Court in the said judgment, a retrospective order of preventive detention following the termination of a person’s placement in a psychiatric hospital did not breach the protection of legitimate expectations guaranteed in a State governed by the rule of law or the prohibition of retrospective punishment. As the judgments of the European Court of Human Rights only had the force of Federal legislation in Germany, the fact that that Court had considered, in its judgment of 17 December 2009, that retrospective preventive detention was in breach of human rights, did not alter that conclusion. 36. On 15 November 2011 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 37. On 8 October 2010 the Darmstadt Regional Court dismissed the applicant’s request of 6 July 2010 for a reopening of the proceedings in which his preventive detention had been ordered as inadmissible as there was currently no ground for reopening. In particular, a reopening on the ground that the European Court of Human Rights had found a domestic court’s judgment to be in breach of the Convention applied only to applicants who had themselves obtained a judgment of that Court in their favour. 38. On 26 November 2010 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 39. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). A summary of the provisions of the Basic Law governing the right to liberty (Article 2 § 2) and the ban on retrospective application of criminal laws (Article 103 § 2) can also be found in that judgment (ibid., §§ 57 and 61). The provisions referred to in the present case provide as follows: 40. Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) cover, in particular, placement in a psychiatric hospital (Article 63 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). 41. Article 66 of the Criminal Code governs orders for a person’s preventive detention made by the sentencing court when finding the person guilty of an offence. That court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public. 42. In particular, under Article 66 § 1 of the Criminal Code, in its version in force at the relevant time, the sentencing court had to order preventive detention in addition to the penalty if someone was sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions were satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence (Article 66 § 1 (1)). Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years (Article 66 § 1 (2)). Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (Article 66 § 1 (3)). 43. Under Article 66 § 3, first sentence, of the Criminal Code, preventive detention may further be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences, including murder, rape and dangerous assault, to at least two years’ imprisonment, if he has previously been convicted (only) once of one or more such offences to at least three years’ imprisonment and if the remaining requirements laid down in Article 66 § 1 (2) and (3) are met. 44. Article 72 of the Criminal Code governs the combination of different measures of correction and prevention. If the conditions for several such measures are met, yet the desired objective may be attained by one or a part of these measures, then only those latter measures shall be ordered (see Article 72 § 1). Otherwise, such measures shall be ordered cumulatively unless the law provides otherwise (Article 72 § 2). 45. The Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004, inserted Articles 66b and 67d § 6 into the Criminal Code; the latter provision was amended by an Act of 13 April 2007. The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met, but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14). 46. In fact, under the case-law previously established by the courts dealing with the execution of sentences, a person’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered from a condition excluding or diminishing his criminal responsibility, even if that person was still dangerous to the public (see Hamm Court of Appeal, no. 4 Ws 389/81, decision of 22 January 1982, Neue Zeitschrift für Strafrecht (NStZ) 1982, p. 300; Karlsruhe Court of Appeal, no. 1 Ws 143/82, decision of 30 June 1982, Monatsschrift für Deutsches Recht (MDR) 1983, p. 151; Federal Court of Justice, no. 3 StR 317/96, judgment of 27 November 1996, Collection of decisions of the Federal Court of Justice in Criminal Matters (BGHSt) no. 42, p. 310; see also Federal Constitutional Court, nos. 2 BvR 1914/92 and 2105/93, decision of 28 December 1994, Neue Juristische Wochenschrift (NJW) 1995, p. 2406; and Federal Court of Justice, no. 4 StR 577/09, decision of 12 May 2010, § 13 with further references). 47. Article 66b § 3 of the Criminal Code, in its version in force at the relevant time, provided: “(3) If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement, the court may order preventive detention retrospectively if 1. the placement of the person concerned under Article 63 was ordered on the basis of several of the offences listed in Article 66 § 3, first sentence, or if the person concerned had either already been sentenced to at least three years’ imprisonment or had been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63, and 2. a comprehensive assessment of the person concerned, his offences and, in addition, his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims.” 48. Article 67d § 6 of the Criminal Code provides: “(6) If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. The release of the person concerned from the psychiatric hospital shall entail supervision of his or her conduct. ...” 49. The said two provisions remained valid also under the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code, the former paragraph 3, slightly amended, became the only provision of that Article. 50. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release. 51. Article 63 of the Criminal Code governs the detention of mentally ill persons as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. It provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court shall order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public. 52. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective 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. 53. 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 establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003 and Article 66b § 3 of the Criminal Code in its version of 23 July 2004. 54. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively under Article 66b § 2 of the Criminal Code (but not preventive detention ordered under Article 66b § 3 of the Criminal Code), the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 55. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).