CASE OF G v. GERMANY
Remainder inadmissible;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 1968. When lodging his application with the Court, he was detained in Schwalmstadt Prison. Since February 2012 he has been detained in Straubing Prison. 6. On 6 February 1992 the Frankfurt am Main Regional Court convicted the applicant, a first offender, of three counts of murder and one count of attempted murder committed between October 1988 and March 1990. The applicant was found to have killed or have attempted to kill in his car four young women he had not previously known treacherously and in order to satisfy his sexual desires. He had strangulated a seventeen-year-old hitchhiker during his lunch-break, had strangulated two prostitutes during or after sexual intercourse with them and had attempted to strangulate a third prostitute in the same manner. The Frankfurt am Main Regional Court sentenced the applicant to fifteen years’ imprisonment and ordered his placement in a psychiatric hospital (Article 63 of the Criminal Code, see paragraph 44 below). The court, having consulted a psychiatric and a psychological expert who had diagnosed the applicant with a sadist sexual deviation, lack of empathy and a brain damage, found that the applicant suffered from a serious mental abnormality and had acted with diminished criminal responsibility. Furthermore, owing to that condition, the applicant was liable to reoffend and was therefore dangerous to the public. 7. The Regional Court further considered that the conditions for the applicant’s preventive detention under Article 66 of the Criminal Code (see paragraph 35 below) were equally met. However, even though it did not appear very likely that the applicant’s condition could be treated, it could not be wholly excluded that a therapy might prove successful. Therefore, the court decided, by reference to Article 72 § 1 of the Criminal Code (see paragraph 37 below), to order the applicant’s placement in a psychiatric hospital and not in preventive detention as the former was the more suitable measure of correction and prevention in these circumstances. 8. On 11 March 1992 the applicant was accordingly transferred to Heina psychiatric hospital. 9. On 14 March 1994 the Marburg Regional Court ordered that the applicant serve his prison sentence prior to his continued placement in a psychiatric hospital as a therapy of the applicant had not proven successful. The applicant then served his full sentence in Kassel Prison. On 13 February 2006 the applicant requested his release, arguing that he had served his full sentence on 20 March 2005. Thereupon, he was again transferred to Haina Psychiatric Hospital in April 2006 on the basis of his conviction in 1992. 10. On 5 April 2007 the Kassel Regional Court terminated the applicant’s placement in a psychiatric hospital pursuant to Article 67d § 6 of the Criminal Code (see paragraph 41 below). That decision became final on 25 April 2007. Having regard to the findings of an expert it had consulted, it found that the applicant had in fact not suffered from a disorder which had made him act with diminished criminal responsibility at the time he had committed his offences and which had warranted his placement in a psychiatric hospital. By a decision of the same day, the Kassel Regional Court ordered the applicant’s provisional detention pending the competent court’s decision whether or not he was to be placed in preventive detention retrospectively. The latter order became final on 17 July 2007. The applicant was then detained in Weiterstadt Prison since August 2007. 11. On 13 March 2008 the Frankfurt am Main Regional Court, relying on Article 66b § 3 of the Criminal Code (see paragraphs 38 and 40 below), ordered the applicant’s preventive detention retrospectively (nachträgliche Sicherungsverwahrung). 12. The Frankfurt am Main Regional Court found that, as required by Article 66b § 3 (1) of the Criminal Code, the applicant had been placed in a psychiatric hospital pursuant to Article 63 of the Criminal Code after having committed several of the offences listed in Article 66 § 3, first sentence, namely several murders. On 5 April 2007 the Kassel Regional Court had terminated the applicant’s placement in a psychiatric hospital pursuant to Article 67d § 6 of the Criminal Code as the condition diminishing the applicant’s criminal responsibility on which the placement order had been based had never existed and thus did not persist at the time of the decision terminating the placement. It was irrelevant whether or not the placement in a psychiatric hospital had been based on a wrong diagnosis from the outset. 13. The Frankfurt am Main Regional Court further considered that a comprehensive assessment of the applicant, his offences and, in addition, his development during the execution of his placement in a psychiatric hospital revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims (Article 66b § 3 (2)). Having regard to the convincing findings of two psychiatric experts it had consulted and to the statements made by the doctors who had attempted to motivate the applicant to undergo therapy in prison and in the psychiatric hospital, the court found that it was very likely that the applicant, if released, would commit offences similar to those which he had been convicted of in 1992. Less restrictive measures, in particular the supervision of the applicant’s conduct, would be insufficient to protect the public from him. 14. The psychiatric experts L. and H., who had been obliged to draw up their reports on the basis of the case files as the applicant had refused to have himself examined by them, had considered that there was a high risk that the applicant would commit further murders for sexual motives or in order to cover up previous violent sexual offences if released. He had committed a series of murders without any comprehensible motives arising from his personal situation. Even though he did not suffer from a true sadistic deviation, his acts had disclosed a combination of aggressive and sadistic sexual elements. He was particularly dangerous for his lack of empathy and his refusal to reflect on his offences and to undergo treatment. 15. On 14 March 2008 the applicant lodged an appeal on points of law. He took the view that Article 66b § 3 of the Criminal Code was incompatible with the Basic Law. 16. On 10 September 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. On 18 September 2008 the applicant was transferred to Schwalmstadt Prison. 17. On 13 October 2008 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He argued that Article 66b § 3 of the Criminal Code and the decisions of the lower courts, based on that provision, to order his preventive detention retrospectively were incompatible with the Basic Law. He stressed that the sentencing court in 1992, in a final judgment, had deliberately declined to place him in preventive detention. The said provision and decisions therefore breached the prohibition to increase a penalty retrospectively (Article 103 § 2 of the Basic Law) as well as the constitutional protection of legitimate expectations in a State governed by the rule of law and the prohibition to be punished twice for the same offence. The failure to release him following the termination of his placement in a psychiatric hospital further violated his right to liberty under the Basic Law (Article 2 § 2). 18. 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 who lodged application no. 61827/09 before the Court – on the grounds that it was ill-founded (file no. 2 BvR 2098/08). 19. 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 or without ever having suffered from the said condition, was still dangerous to the public. 20. The Federal Constitutional Court found that Article 66b § 3 of the Criminal Code and the lower 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. 21. 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. 22. 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 court’s decision not to order preventive detention became final even if it later emerged that the court 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. 23. 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. 24. 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. Furthermore, a psychologist and a social worker were available permanently to discuss with the detainees. 25. When transferred to Schwalmstadt Prison on 18 September 2008, the applicant refused to discuss the planning of the execution of the preventive detention order with the prison staff, which therefore considered his transfer to a social therapeutic institution as lacking prospects of success. He worked in prison from 1 November 2008 until 28 February 2009 and has been out of work since then. In October 2010 the applicant participated in a three-day social training course in prison. 26. On 10 March 2009 the Marburg Regional Court refused to suspend the applicant’s further preventive detention and to grant probation. It found that it could not be expected that the applicant would not commit any further offences if released (Article 67d § 2 of the Criminal Code; see paragraph 43 below). It noted that the applicant still considered it unnecessary to reflect on his offences or to undergo a therapy. The decision became final on 1 April 2009. 27. On 15 July 2011 the Marburg Regional Court declined to terminate the applicant’s preventive detention. It found again that it could not be expected that the applicant would not commit any further offences if released (Article 67d § 2 of the Criminal Code). On the contrary, there was a danger that if released, the applicant, owing to specific circumstances relating to his person and his conduct in prison, would commit serious crimes of violence as defined by the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraph 47 below), namely treacherous murders to satisfy his sexual desires. 28. 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 (M. v. Germany, cited above), that retrospective preventive detention was in breach of human rights, did not alter that conclusion. 29. On 22 August 2011 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. It agreed with the Regional Court that the stricter standards set up by the Federal Constitutional Court in its judgment of 4 May 2011 (see paragraph 47 below) for a continuation of preventive detention which had been ordered retrospectively under paragraph 2 of Article 66b of the Criminal Code did not apply to preventive detention ordered under paragraph 3 of that provision. 30. The applicant subsequently lodged a constitutional complaint with the Federal Constitutional Court against these decisions. The proceedings before that court are apparently still pending. 31. On 13 September 2010 the Darmstadt Regional Court dismissed as inadmissible the applicant’s request for a reopening of the proceedings in which his retrospective preventive detention had been ordered in 2008. 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. Moreover, the facts at issue in the M. v. Germany case (cited above) were not sufficiently comparable to those in the present case. 32. On 11 November 2010 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 33. 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: 34. 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). 35. 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. 36. Under Article 66 § 3, first sentence, of the Criminal Code, in its version in force at the time of the order for the applicant’s retrospective preventive detention, preventive detention may 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. 37. 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). 38. 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 (including cases in which they had never been met from the outset), but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14). 39. 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, or had in fact never 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). 40. 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.” 41. Article 67d § 6 of the Criminal Code, in its version in force at the relevant time, provided: “(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. On termination of the measure, the conduct of the person concerned shall be supervised. ...” 42. 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 by the said Act, the former paragraph 3, slightly amended, became the only provision of that Article. 43. 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. 44. 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. 45. 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. 46. 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. 47. 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 retrospectively, 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. 48. 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).