CASE OF OSTERMUNCHNER v. GERMANY
Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Mark Villiger
6. The applicant was born in 1953 and is currently detained in Vienna (Austria). 7. Between 1968 and 1988 the applicant was convicted by Austrian courts in seven judgments of offences including robbery, theft, assault and dangerous assault. In 1981 he was also found guilty of raping a woman he had followed from the street into her house on the day of his release from prison. He was sentenced to seven years’ imprisonment; the court further ordered his placement in an institution for mentally disturbed offenders. The applicant was detained altogether for more than ten years, at times in an institution for mentally disturbed criminals. 8. On 14 June 1991 the Munich I Regional Court convicted the applicant of three counts of sexual abuse of children, combined with attempted rape in one case and with attempted sexual assault in another case, committed in 1989 and 1990. It sentenced him to five years and six months’ imprisonment and ordered his preventive detention pursuant to Article 66 § 1 of the Criminal Code (see paragraphs 31-32 below). The Regional Court found that the applicant, who had acted with full criminal responsibility, had sexually abused and attempted to sexually assault an eight-year-old girl he had followed from the street into her home. He had further sexually abused and attempted to rape a ten-year-old girl he had lured into the cellar of her house and had sexually abused another eightyear-old girl in a playground. The Regional Court found that the applicant, whom the court-appointed experts had described as an egocentric anti-social personality lacking empathy, had a propensity to commit serious offences which considerably harm their victims physically or mentally. 9. By a decision of 19 September 1991 the City of Munich, having regard to the applicant’s conviction by the Munich I Regional Court on 14 June 1991, decided to expel the applicant from German territory and prohibited him from ever re-entering Germany. The expulsion was to be enforced on the applicant’s release from prison. The decision became final on 30 October 1991. 10. The applicant served his full prison sentence until 20 March 1996. He was then placed in preventive detention, for the first time, on 21 March 1996, which was executed in a separate wing of Straubing Prison. 11. On 15 July 1997 the Regensburg Regional Court ordered the execution of the preventive detention order against the applicant (Article 67c § 1 of the Criminal Code, see paragraph 33 below). It noted that in his reports dated 15 October 1996 and 20 June 1997 the psychiatric and neurologic expert, A., it had consulted had found that the applicant suffered from a dissocial personality disorder and had not wished to undergo a therapy addressing his sexual offences in prison for fear of being harassed by other detainees. He considered that the applicant should first undergo a social therapy in prison to test his readiness to change his personality and should then be admitted to a therapy for sexual offenders. 12. The Regional Court found that unless the applicant had completed a therapy for sexual offenders, there was still a risk that he would commit further sexual offences if released. The court further refused to transfer the applicant to a psychiatric hospital (Article 67a § 2 of the Criminal Code, see paragraph 39 below). The applicant’s reintegration into society could currently best be furthered by a social therapy; he was not, therefore, transferred to a psychiatric hospital for a sexual therapy. 13. The applicant subsequently attempted to be admitted to a social therapeutic institution in a different prison, with the help of the Straubing Prison authorities. However, on 1 August 1997 the social therapeutic institution of Baden-Württemberg refused to accept the applicant for treatment. It argued that in view of the enforceable expulsion order against him, it could not be guaranteed that the applicant could complete a five-year therapy in that institution. Likewise, on 6 November 1998 the Erlangen Prison refused to admit the applicant to its social therapeutic department. It was argued that under the administrative rules relating to section 9 of the Execution of Sentences Act (see paragraph 38 below), prisoners against whom an enforceable expulsion order had been made were excluded from transfer to a social therapeutic institution. Moreover, on 22 December 1998 the Munich Prison equally refused to admit the applicant to a social therapy. It was argued that its department offered treatment for young sexual offenders and was therefore not suitable for the then 45-year-old applicant. 14. In its decision of 13 January 2000, which was confirmed on appeal, the Regensburg Regional Court ordered the continuation of the applicant’s preventive detention. It found that there was a risk that the applicant, who still suffered from a dissocial personality disorder, would commit further sexual offences if released (Article 67d § 2 of the Criminal Code, see paragraph 34 below). The court considered that the applicant had refused with good cause to participate in a psychoanalytical group therapy for sexual offenders in Straubing Prison. He had further made strenuous efforts, with the help of the prison authorities, to be admitted to a social therapy in a different prison, which had also been considered to be beneficial by the psychiatric expert A. heard by that court. However, he had not been allowed to take part in a social therapy in Germany because of his age and because he was a foreigner who was to be expelled from German territory. It should therefore be examined by the prosecution authorities whether he could be transferred to Austria for the continuation of his preventive detention and could be admitted to a social therapy there. 15. On 17 December 1993, 19 July 1995, 20 October 1998, 2 August 2000 and 14 February 2003 the Munich I Public Prosecutor’s Office, whose decisions were confirmed on appeal, dismissed the applicant’s repeated requests under Article 456a of the Code of Criminal Procedure (see paragraph 37 below) to dispense with the further execution of his prison sentence and his preventive detention in view of his expulsion from German territory. It argued that there was still a public interest in the further execution of the preventive detention order made against the applicant, who was likely to reoffend and was dangerous to the public. It was noted in these proceedings that the applicant had not taken up the authorities’ proposal that he should request his transfer to Austria for the further execution of his preventive detention. 16. On 2 May 2003 the Regensburg Regional Court, having heard the applicant, his counsel and a psychiatric and psychotherapeutic expert, H., ordered the further execution of the applicant’s preventive detention under Article 67d § 2 of the Criminal Code. 17. The Regional Court agreed with the findings of expert H. who had taken the view that the applicant’s dissocial personality had not changed and that there was still a risk that he would commit further violent sexual offences if released. In his report of 25 October 2002 the expert had considered that a therapy should be attempted despite its limited chances of success because the applicant had repeatedly stated that he was willing to undergo therapy and because there were no other means to reduce his dangerousness. He had proposed that the applicant participate in a discussion group for sexual offenders in Straubing Prison – which the applicant had, however, refused as he did not wish his offences to become known within that prison. The expert had further proposed that the applicant be admitted to a social therapeutic institution – for instance in Bayreuth, Amberg or Würzburg Prison or in that which was currently being built up in Straubing Prison itself. 18. On 4 July 2003 the Nuremberg Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it found that it was not to be expected that the applicant would not commit further offences on his release (Article 67d § 2 of the Criminal Code). It equally referred to the findings of expert H., which it considered convincing. It noted, in particular, that the expert had considered that the applicant should first take part in a discussion group for sexual offenders in Straubing Prison; however, the applicant had vigorously refused to do so. In view of this, the court considered that the applicant’s continued preventive detention was proportionate. 19. The Court of Appeal further noted that the prosecution authority’s refusal to dispense with a further execution of the applicant’s preventive detention under Article 456a of the Code of Criminal Procedure was not the subject-matter of the proceedings before it. It noted, however, that the applicant had not taken up the prosecution’s proposal to make a (necessary) request for his transfer to Austria for the further execution of his preventive detention. 20. On 8 August 2003 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He claimed that his right to liberty had been violated because his continued preventive detention, during which he had been refused any therapy in view of his impending expulsion, was disproportionate. Moreover, his continued preventive detention without a maximum duration, which had been abolished after his conviction (Article 67d § 3 of the Criminal Code, read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code, as amended in 1998, see paragraph 36 below), breached the prohibition of retrospective punishment. The refusal to offer him any treatment because of the expulsion order against him also discriminated against him on account of his Austrian nationality. 21. By a decision of 25 March 2004, which was served on the applicant’s counsel on 7 April 2004, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1355/03). 22. In so far as the applicant complained that the prohibition of retrospective punishment under the Basic Law had been breached, the Federal Constitutional Court found that his complaint was inadmissible. The applicant was not yet affected by the provisions of Article 67d § 3 of the Criminal Code, read in conjunction with Section 1a § 3 of the Introductory Act to the Criminal Code. The court further referred to its leading judgment of 5 February 2004 in the case of M. (file no. 2 BvR 2029/01; application no. 19359/04 to this Court). Apart from that, the applicant’s complaint was ill-founded as the impugned decisions of the courts dealing with the execution of sentences did not violate constitutional law. 23. On 14 July 2005 the Regensburg Regional Court again ordered the applicant’s preventive detention to continue (Article 67d § 2 of the Criminal Code). It noted that the applicant had not received any therapy. The applicant had confirmed this, stating that he had failed in his attempts to be admitted to a therapy in a different prison in view of his planned deportation. The applicant’s appeal against this decision was to no avail. 24. On 27 April 2006 the Regensburg Regional Court decided that the applicant’s preventive detention was not to be declared terminated on completion of ten years in such detention (20 March 2006). Having consulted a psychiatric expert, N., it found that there was still a risk that the applicant would commit further serious sexual offences resulting in considerable psychological or physical harm to the victims if released (Article 67d § 3 of the Criminal Code). It noted that the applicant had refused therapies for sexual offenders or social therapeutic treatment which had since been made available in Straubing Prison. On 4 July 2006 the Nuremberg Court of Appeal dismissed the applicant’s appeal. On 10 January 2007 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint. 25. On 15 September 2005 and on 28 September 2007 the Bavarian Ministry for Justice dismissed the applicant’s requests to be transferred to Austria for the further execution of the preventive detention order against him as the applicant would have to be released there after having served ten years in such detention, that is, in March 2006. The decisions became final. 26. Furthermore, on 13 May 2004, 13 April 2005 and 16 May 2007 the Munich I Public Prosecutor’s Office, whose decisions were confirmed by the Munich General Public Prosecutor, dismissed the applicant’s fresh requests under Article 456a of the Code of Criminal Procedure to dispense with the further execution of his prison sentence and his preventive detention in view of his expulsion from German territory. The latter decision was quashed on 4 December 2007 by the Munich Court of Appeal, which argued that it appeared that the prosecution authorities had failed to take all aspects relevant to their decision into account. 27. On 24 January 2008 the Munich I Public Prosecutor’s Office dispensed with the further execution of the applicant’s preventive detention at the date of his expulsion from Germany under Article 456a § 1 of the Code of Criminal Procedure. 28. On 16 April 2008 the applicant was released from Straubing Prison and expelled to Austria. 29. On 14 May 2008 the Vienna Regional Court revoked the suspension on probation of the applicant’s placement in an institution for mentally disturbed offenders ordered in 1981 (see paragraph 7 above). Since 12 August 2008 the applicant has been detained in Vienna. 30. 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). The provisions referred to in the present case provide as follows: 31. The sentencing 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 (Article 66 of the Criminal Code). 32. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are 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. 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. 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 (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time). 33. Article 67c § 1 of the Criminal Code provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b (1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends the execution of the preventive detention order and places the person on probation with supervision of the person’s conduct which commences with the suspension. 34. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article, in its version in force at the relevant time, 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. 35. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3). 36. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the offender’s conduct. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a (3) of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis. 37. Pursuant to Article 456a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may dispense with the execution of a prison sentence or a measure of correction and prevention if the convicted person is expelled from German territory. The execution of the sentence or measure may be continued if the expelled person returns to Germany territory (Article 456a § 2 of the Code of Criminal Procedure). 38. Section 9 § 2 of the Execution of Sentences Act provides that prisoners may be transferred to a socio-therapeutic institution with their consent if the special therapeutic measures and social aids of the institution are advisable for their rehabilitation. The transfer is conditional upon the consent of the head of the socio-therapeutic institution concerned. 39. Article 67a of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, of the Criminal Code, the court may subsequently transfer a perpetrator against whom preventive detention was ordered to a psychiatric hospital if the perpetrator’s reintegration into society can be better promoted thereby. 40. 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 the complainants’ preventive detention (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 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. 41. 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. 42. 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. The provisions on the imposition and duration of preventive detention which did not concern the retrospective ordering or prolongation of preventive detention could only continue to be applied in the transitional period subject to a strict review of proportionality. As a general rule, proportionality was only observed where there was a danger of the person concerned committing serious violent crimes or sexual offences if released. 43. 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).