CASE OF W.P. 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)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
5. The applicant was born in 1944. At the time of lodging his application, he was detained in a Centre for persons in preventive detention in Hamburg-Fuhlsbüttel Prison. He now lives in Pinneberg. 6. On 28 March 1994 the Lübeck Regional Court convicted the applicant of rape and sexual assault. It sentenced him to eight years’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see paragraph 23 below). The court found that in August 1986 the applicant, having acted with full criminal responsibility, had raped an eighteen-year-old woman whom he had lured into a forest. It noted that between 6 October 1970 and 28 May 1991 the applicant had been convicted of five counts of rape of young women, committed only a couple of months after his release from prison. Therefore, and having consulted a medical expert, the court found that the applicant had a propensity to commit serious sexual offences and was dangerous to the public. 7. On 10 January 2002 the applicant, who had fully served his prison sentence, was placed for the first time in preventive detention, initially in Lübeck Prison. He had thus served ten years in preventive detention by 9 January 2012. 8. On 2 October 2012 the Lübeck Regional Court, having heard the applicant in person as well as his lawyer, by whom he was represented throughout the proceedings, ordered the applicant’s preventive detention to continue. 9. The Regional Court considered that the requirements set up by Article 67d of the Criminal Code, read in the light of the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraph 23 below), in order for retrospectively-extended preventive detention to continue, were met. It found that the applicant suffered from a mental disorder, for the purposes of section 1 (1) of the Therapy Detention Act (see paragraph 23 below). He had a personality and conduct disorder 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 Regional Court endorsed the findings which psychiatric expert B. had made in his report dated 4 June 2010 on the possibility of granting relaxation of the conditions of the applicant’s detention (Vollzugslockerungen) after having examined the applicant in person. The expert had found that the applicant suffered from a profound and serious personality disorder with narcissistic elements and a lack of self-esteem. His disorder was characterised by denying and idealising conduct, total denial of his own aggression and minimisation of his criminal acts. 10. Furthermore, in the Regional Court’s view, there was still a high risk that the applicant, owing to the said specific circumstances relating to his person and his conduct, would commit the most serious sexual offences if released. It had repeatedly been confirmed, in particular, by expert B. and by the Hamburg-Eppendorf University hospital, that the applicant needed comprehensive therapy for sexual offenders in a social therapeutic institution. However, the applicant, who had not completed therapy, had confirmed at the hearing that he refused transfer to the prison’s social therapeutic department. Furthermore, the applicant had already raped six women and had repeatedly reoffended shortly after his release. 11. On 24 October 2012 the applicant lodged an appeal against the Regional Court’s decision with the Schleswig-Holstein Court of Appeal. He argued that his continued preventive detention beyond the former tenyear time-limit breached the Basic Law, as interpreted by the Federal Constitutional Court, and the Convention. He complained, in particular, that the Regional Court had failed to obtain a new report by a different expert and had relied on the report of expert B. dating back two-and-a-half years, on relaxation of the conditions of the applicant’s detention, which had not addressed the issues relevant to his continued detention. 12. On 21 November 2012 the Schleswig-Holstein Court of Appeal dismissed the applicant’s appeal. As regards the finding that the applicant suffered from a mental disorder for the purposes of section 1 (1) of the Therapy Detention Act, the Court of Appeal stressed that the decision to extend the applicant’s preventive detention had not only been based on the written report submitted by expert B. in 2010. The expert had been heard in person by the Regional Court in different proceedings (concerning the applicant’s transfer to a psychiatric hospital, see paragraph 19 below) on 6 June 2012 and had updated and confirmed his previous findings. His assessment had further been shared by the Hamburg-Eppendorf University hospital in its statement dated 27 March 2012 on the therapeutic progress made by the applicant. The hospital, having regard to the voluminous casefile, had confirmed expert B.’s conclusion that the applicant, who had refused any therapeutic treatment for years, suffered from a profound personality disorder as defined by the ICD-10, namely a narcissistic personality disorder with emotionally unstable and sadistic elements. 13. The Court of Appeal, having regard to the applicant’s previous offences and the fact that therapy to date had not yielded success, further agreed that there was still a high risk that the applicant would commit the most serious sexual offences if released. As had been confirmed by the applicant in the hearing before the Regional Court, his personal and therapeutic situation had not changed since the Court of Appeal’s last decision of 18 November 2011 in which, in periodic review proceedings, it had ordered the extension of the applicant’s preventive detention. 14. On 17 December 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the extension of his preventive detention beyond the former statutory ten-year time-limit had violated his right to liberty and the protection of legitimate expectations in a State governed by the rule of law. 15. The applicant claimed that the restrictive criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011 for a continuation of his retrospectively extended preventive detention had not been met. In particular, the order for the continuation of his preventive detention had been based on an old expert report on relaxation of the conditions of his detention, which had not addressed the criteria set up by the Federal Constitutional Court. In these circumstances, the courts had not had at their disposal a sufficient basis for concluding that he had a mental disorder for the purposes of the Therapy Detention Act. In any event, he did not suffer from a mental illness as required by Article 5 § 1 (e) of the Convention. 16. On 20 March 2013 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2886/12). 17. From 10 January 2002 until 22 May 2013 the preventive detention order against the applicant was executed in Lübeck Prison, where the applicant was detained together with persons serving their prison sentence. For as long as the applicant’s detention was executed at that prison during the time covered by the proceedings at issue, the applicant, having refused repeated offers of treatment, in particular transfer to the socialtherapeutic institution of Lübeck Prison, apparently did not undergo any therapy for sexual offenders. His occasional conversations with the prison psychologists had been discontinued in May 2012. 18. On 22 May 2013 the applicant was transferred to the newly-set-up Centre for persons in preventive detention in Hamburg-Fuhlsbüttel Prison. That Centre was built in order to comply with the constitutional requirement, as defined by the Federal Constitutional Court in its judgment of 4 May 2011, to differentiate between preventive detention and imprisonment. Soon after his transfer to that Centre the applicant started comprehensive therapy, including one-to-one and group therapy sessions. He was granted leave without escort from March 2014 onwards. 19. Prior to the proceedings at issue, on 14 June 2012 the Lübeck Regional Court dismissed the prosecution’s request to transfer the applicant to a psychiatric hospital for the further execution of his preventive detention under Article 67a § 2 of the Criminal Code (see paragraph 23 below). Having heard psychiatric expert B., the Regional Court found that the applicant’s reintegration into society could not better be supported in a psychiatric hospital. It was necessary for the applicant to undergo therapy for sex offenders in a social-therapeutic department in prison or possibly with an external social therapist. Transferring the applicant, who was not willing to undergo therapy, to a psychiatric hospital against his will would not yield any success. 20. On 24 October 2013, in new review proceedings, the Hamburg Regional Court ordered the applicant’s preventive detention to continue. It had regard to the report dated 28 August 2013, submitted by psychiatric expert L., on the applicant’s mental condition and the danger he represented. Having examined the applicant in person, L. had considered that the applicant was an accentuated personality, possibly with sadistic personality traits, and lacked self-esteem. He found, however, that the applicant could not be diagnosed with a mental disorder as defined in the ICD-10; in particular, he showed no signs of sexual sadism. There was a medium risk that the applicant would again commit serious sexual offences if released. 21. On 29 August 2014 the Hamburg Regional Court, having regard to an additional report drawn up by expert L., declared the applicant’s preventive detention terminated and ordered his release on 1 October 2014. It found that the applicant neither suffered from a mental disorder nor was there a high likelihood that he would commit the most serious crimes of violence or sexual offences if released.