CASE OF ILNSEHER v. GERMANY
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty);No violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal)
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. 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 Prison preventive detention centre”). 6. 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, had partly undressed the dead or dying victim and had then masturbated. The court found that the applicant had acted with full criminal responsibility. 7. 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 41 below). 8. On 22 June 2009 the Regensburg Regional Court, with Judge P. sitting on the bench, ordered the applicant’s retrospective preventive detention under Article 7 § 2 no. 1 of the Juvenile Courts Act, read in conjunction with Article 105 § 1 of the Juvenile Courts Act (see paragraphs 38-39 below). The court, having regard to the reports made by a criminological expert (Bo.) and a psychiatric expert (Ba.), found that the applicant was still harbouring 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. 9. 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 that the order for the applicant’s provisional preventive detention – which had become devoid of purpose once the order for the applicant’s retrospective 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 paragraph 43 below). 10. On 5 May 2011 the applicant requested the Regensburg Regional Court to 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 retrospective preventive detention, there was no longer any legal basis for his detention. 11. 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 Articles 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 39 and 41 below). The court found that the applicant’s provisional preventive detention was necessary because there were weighty grounds for expecting that his retrospective preventive detention would be ordered under Article 7 § 2 no. 1 of the Juvenile Courts Act, read in the light of the judgment of the Federal Constitutional Court of 4 May 2011. 12. 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. 13. On 4 July 2011 the Regensburg Regional Court refused to amend its decision of 6 May 2011. 14. 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 that the applicant’s appeal be dismissed, (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. 15. 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 the applicant’s counsel on 6 September 2011. 16. 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 these 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. 17. 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. 18. 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. 19. 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. 20. 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 the applicant’s counsel on 30 May 2012. 21. In the resumed proceedings before the Regensburg Regional Court following the remittal of the case to it, the applicant lodged a motion for bias against Judge P. The latter had been a member of the bench of the Regensburg Regional Court, which had ordered the applicant’s retrospective preventive detention on 22 June 2009 (see paragraph 8 above). The applicant claimed 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 retrospective 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 between the judges and the applicant’s two lawyers in camera concerning the applicant’s possible transfer to a psychiatric hospital following the Regional Court’s judgment. 22. In a comment of 13 December 2011 on the applicant’s motion for bias, Judge P. explained that he remembered having 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 amount of time that had elapsed, he neither recalled the exact context in which he had allegedly made the impugned remark nor the precise contents of the discussion. 23. On 2 January 2012 the Regensburg Regional Court dismissed the motions 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 within 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. 24. 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, some 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. 25. On 3 August 2012 the Regensburg Regional Court, having held hearings over twenty-four days, again ordered the applicant’s retrospective preventive detention. 26. The Regional Court found, in particular, that, as required by Articles 7 § 2 no. 1 and 105 § 1 of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011, 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 crimes of violence and sexual offences, similar to the one he had been found guilty of, if released. 27. The Regional Court further found that the applicant suffered from a mental disorder for the purposes of section 1 § 1 of the Therapy Detention Act (see paragraph 43 below). 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 paragraph 43 below). Given that the sexual sadism the applicant suffered from was of a serious nature and had substantially affected the applicant’s development since his adolescence, it amounted to a mental disorder within the meaning of the Therapy Detention Act. 28. The Regional Court based its view on the reports of two external psychiatric experts, K. and F., whom it had consulted. Having regard to the findings of these experts, as well as to the findings of several 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); this disorder had caused and been manifested in his brutal offence and still persisted. The therapy the applicant had undergone until 2007, in particular social therapy, had not been successful. Even though he appeared ready, in principle, to participate in further therapy, he was not currently undergoing any. 29. 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 determined with the participation of a biased judge, P. 30. On 5 March 2013 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. 31. 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 not complied with the prohibition on retrospective penalties under the Constitution and Article 7 § 1 of the Convention, with the right to liberty and the protection of legitimate expectations in a State governed by the rule of law, or 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. 32. 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). 33. On 7 May 2011, following the order for the applicant’s provisional preventive detention, the applicant 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, there was no longer the possibility to undergo therapy. On 13 September 2011 he was transferred back to and again detained in the wing for persons in preventive detention in Straubing Prison until 20 June 2013. 34. Since 20 June 2013 the applicant has been detained in the newly built Straubing Prison preventive detention centre. In that institution, which can house up to 84 detainees, one psychiatrist, seven psychologists, one general practitioner, seven social workers, one lawyer, one teacher, one prison inspector, four nurses, forty-four members of general prison staff and four members of the administrative staff are in charge of the detainees. Inmates can stay outside their cells, which these days measure 15 square metres, between 6 a.m. and 11.30 p.m. The applicant has refused any offers of therapy at that centre, in particular, one-to-one or group social therapy, participation in an intensive treatment programme for sex offenders, or therapy administered by an external psychiatrist.