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FIFTH
SECTION
CASE OF JENDROWIAK v. GERMANY
(Application
no. 30060/04)
JUDGMENT
STRASBOURG
14 April
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Jendrowiak v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann, President,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Ann
Power,
Angelika Nußberger, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 22 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30060/04) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Richard Jendrowiak (“the applicant”), on 10 August 2004.
- The
applicant was initially represented before the Court by Mr C. Trurnit
and subsequently by Ms L. Kühnbach, lawyers practising in
Freiburg. The German Government (“the Government”) were
represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, and by their permanent Deputy Agent, Mr
H.-J. Behrens, Ministerialrat, of the Federal Ministry of
Justice.
- The
applicant alleged, in particular, that the retrospective extension of
his first preventive detention beyond a period of ten years, which
had been the maximum for such detention under the legal provisions
applicable at the time of his offence, had
breached his right to liberty as guaranteed by Article 5 § 1 of
the Convention and the prohibition of retrospective
punishment under Article 7 § 1 of the Convention.
- On
13 March 2007 a Chamber of the Fifth Section decided to adjourn the
examination of the application pending the outcome of the proceedings
in the case of M. v. Germany, no. 19359/04. On 22 January 2009
the President of the Fifth Section decided to give notice of the
application to the Government, requested them to submit information
on changes in the applicant’s detention regime and adjourned
the examination of the application until the judgment in the case of
M. v. Germany (cited above) has become final. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1). In view of the fact that the
judgment of 17 December 2009 in the case of M. v. Germany
became final on 10 May 2010, the President decided on 20 May 2010
that the proceedings in the application at issue be resumed and
granted priority to the application (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953. When lodging his application, he was
detained in Bruchsal Prison. He has been released on 28 August 2009.
A. The applicant’s previous convictions and the
order for his preventive detention and execution thereof
- Since
1972 the applicant has been convicted of five counts of rape and two
counts of attempted rape of women aged between sixteen and nineteen
and has been sentenced three times to terms of imprisonment. Between
May 1976 and his arrest in 1989 he spent only some eight and a
half months outside prison.
- On
23 May 1990 the Heilbronn Regional Court convicted the applicant of
attempted sexual coercion. It sentenced him to three years’
imprisonment and ordered his placement in preventive detention
pursuant to Article 66 § 1 of the Criminal Code (see paragraphs
22-23 below). The Regional Court found that in October 1989 the
applicant, returning to methods similar to those he had used to
commit some of his previous offences, had simulated a breakdown of
his car and had asked a twenty three-year-old woman to help him
restart it. He had then attempted to force his victim to submit
herself to sexual acts, but she had managed to escape. The preventive
detention of the applicant, who had acted with full criminal
responsibility, was necessary as he had a tendency to commit serious
sexual offences in order to humiliate and abuse women and was thus
likely to reoffend.
- The
applicant served his full prison sentence. He was then placed in
preventive detention, for the first time, on 24 October 1992; he had
thus served ten years in preventive detention by 23 October 2002.
- The
continuation of the applicant’s preventive detention was
ordered by the Karlsruhe Regional Court at regular intervals.
B. The proceedings at issue
1. The decision of the Karlsruhe Regional Court
- On
15 October 2002 the Karlsruhe Regional Court, sitting as a chamber
responsible for the execution of sentences, having heard the
applicant, his counsel and a psychiatric expert, W., in person,
ordered the applicant’s preventive detention to continue
pursuant to Article 67d § 3 of the Criminal Code (see paragraph
25 below). It found that there was still a risk that the applicant,
owing to his criminal tendencies, might commit serious sexual
offences if released resulting in considerable psychological or
physical harm to the victims.
- The
Regional Court subscribed to the opinion given by expert W. in his
report of 3 October 2002. The expert, who had to give his view on the
basis of the case file as the applicant had refused to make any
submissions to him, had concluded that there was nothing to indicate
that the applicant, who had committed numerous sexual offences and
suffered from a personality disorder, had changed. He was therefore
likely to reoffend if released.
- The
Regional Court further found that neither the applicant’s
personal situation nor his attitude had changed since its last
decision. As had also been confirmed by expert W., without submitting
himself to a therapeutic treatment, notably to a social therapy,
which the applicant kept refusing to do, the conditions for
suspending the applicant’s preventive detention on probation
could not be met.
- Contrary
to the applicant’s view, the Regional Court further considered
that Article 67d of the Criminal Code, as amended in 1998 (see
paragraph 25 below), was constitutional.
2. The decision of the Karlsruhe Court of Appeal
- On
21 November 2002 the Karlsruhe Court of Appeal, endorsing the reasons
given by the Regional Court, dismissed the applicant’s appeal.
3. The decision of the Federal Constitutional Court
- On
13 December 2002 the applicant, represented by counsel, lodged a
constitutional complaint with the Federal Constitutional Court. He
complained about the decision to prolong his preventive detention on
completion of ten years of placement on the basis of the amended
Article 67d § 3 of the Criminal Code, which had entered
into force after he had committed his offence. He argued that the
decision violated the prohibition of retrospective punishment under
the Basic Law, the prohibition of retrospective legislation enshrined
in the rule of law and his right to liberty. That decision further
breached the principle of proportionality in that the courts
responsible for the execution of sentences had made his release
dependent on the completion of a social therapy lasting five to seven
years, which would unduly prolong his preventive detention.
- On
22 March 2004 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
2027/02). It found that the applicant’s complaint was
ill-founded. Referring 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), it stated that the
provisions on which the applicant’s continued preventive
detention was based, 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 January 1998 (see paragraph 25
below), were constitutional.
- Moreover,
in the Federal Constitutional Court’s view, the criminal courts
had not applied these provisions to the applicant in a
disproportionate manner. There were notably no objections under
constitutional law to considering the total absence of a necessary
therapy to be a negative factor in the assessment of whether the
applicant was likely to reoffend.
C. Subsequent developments
- In
2004 the applicant was diagnosed with cancer of the lymph nodes and
subsequently with cancer of the eyes.
- On
11 July 2005 and on 1 October 2007 the Karlsruhe Regional Court
ordered the continuation of the applicant’s preventive
detention.
- On
29 April 2009 the Karlsruhe Regional Court, sitting as a chamber
responsible for the execution of sentences, decided to suspend the
further execution of the applicant’s preventive detention on
probation as from 31 August 2009 and ordered the supervision of
his conduct. Having consulted a medical expert, it considered that
there were justifiable reasons for testing whether the applicant
could be released without committing further unlawful acts. It noted
that the applicant had persistently refused to make a social (group)
therapy, considered most suitable by all medical experts consulted,
but had at least made an individual therapy with an external
psychotherapist. The applicant was released from preventive detention
on 28 August 2009.
II. RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE
- 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, 17 December 2009). The
provisions referred to in the present case provide as follows:
A. The order of preventive detention by the sentencing
court
- 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 dangerous
to the public (Article 66 of the Criminal Code).
- 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).
B. The duration of preventive detention
- 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).
- 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, provided 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 conduct of
the offender. 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that the retrospective prolongation of his
preventive detention beyond ten years, which he could not have
foreseen, violated his rights under Article 5 § 1 (a) and
Article 6 § 1 of the Convention. The Court considers that this
complaint falls to be examined under Article 5 § 1 alone which,
in so far as relevant, reads:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court; ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
(e) the lawful detention ... of persons of
unsound mind ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant, referring to the Court’s findings in the case of
M. v. Germany (no. 19359/04), considered that his
continued preventive detention beyond the period of ten years, that
is, from 24 October 2002 to 28 August 2009, had violated Article 5 §
1 of the Convention.
- As
regards the compliance of the applicant’s continued detention
with Article 5 § 1, the Government referred to their
observations made on that issue in the case of M. v. Germany
(cited above). They took the view that in terms of the temporal
course of events, the present application was a parallel case to that
of M. v. Germany.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
- The
Court reiterates the principles laid down in its case-law on Article
5 § 1 of the Convention as summarised in its judgment of
17 December 2009 in the case of M. v. Germany, no.
19359/04:
“86. Article 5 § 1 sub-paragraphs
(a) to (f) contain an exhaustive list of permissible grounds for
deprivation of liberty, and no deprivation of liberty will be lawful
unless it falls within one of those grounds (see, inter alia,
Guzzardi v. Italy, 6 November 1980, § 96, Series A no.
39; Witold Litwa v. Poland, no. 26629/95, § 49,
ECHR 2000 III; and Saadi v. the United Kingdom [GC],
no. 13229/03, § 43, ECHR 2008 ...). ...
87. For the purposes of sub-paragraph (a) of
Article 5 § 1, the word “conviction”, having regard
to the French text (“condamnation”), has to be
understood as signifying both a finding of guilt after it has been
established in accordance with the law that there has been an offence
(see Guzzardi, cited above, § 100), and the imposition of
a penalty or other measure involving deprivation of liberty (see Van
Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A
no. 50).
88. Furthermore, the word “after”
in sub-paragraph (a) does not simply mean that the “detention”
must follow the “conviction” in point of time: in
addition, the “detention” must result from, follow and
depend upon or occur by virtue of the “conviction” (see
Van Droogenbroeck, cited above, § 35). In short, there
must be a sufficient causal connection between the conviction and the
deprivation of liberty at issue (see Weeks v. the United Kingdom,
2 March 1987, § 42, Series A no. 114; Stafford v. the United
Kingdom [GC], no. 46295/99, § 64, ECHR 2002 IV;
Waite v. the United Kingdom, no. 53236/99, § 65, 10
December 2002; and Kafkaris v. Cyprus [GC], no. 21906/04,
§ 117, ECHR 2008 ...). ...”
(b) Application of these principles to the
present case
- The
Court has to determine whether the applicant’s preventive
detention beyond a period of ten years was justified under
sub-paragraph (a) of Article 5 § 1 as occurring “after
conviction”, in other words whether there was still a
sufficient causal connection between the applicant’s conviction
and his deprivation of liberty at issue.
- The
Court notes that at the time of the applicant’s criminal
conviction by the Heilbronn Regional Court in 1990, which alone
entailed a finding of guilt (compare, mutatis mutandis, M.
v. Germany, cited above, §§ 95-96), the order for
his preventive detention, read in conjunction with Article 67d §
1 of the Criminal Code in the version then in force (see paragraph 24
above), meant that the applicant, against whom preventive detention
was ordered for the first time, could be kept in preventive detention
for a maximum period of ten years. Thus, had it not been for the
amendment of Article 67d of the Criminal Code in 1998 (see paragraph
25 above), which was declared applicable also to preventive detention
orders which had been made – as had the order against the
applicant – prior to the entry into force of that amended
provision (section 1a § 3 of the Introductory Act to the
Criminal Code; see paragraph 25 above), the applicant would have been
released when ten years of preventive detention had expired,
irrespective of whether he was still considered dangerous to the
public.
- The
present application is therefore a follow-up case, in terms of the
temporal course of events, to the application of M. v. Germany
(cited above), and the Court sees no reason to depart from its
findings in that judgment. The Court thus considers, as it has done
in the case of M. v. Germany (cited above, §§
92-101), that there was not a sufficient causal connection between
the applicant’s conviction by the sentencing court and his
continued deprivation of liberty beyond the period of ten years in
preventive detention. His continuing detention was therefore not
justified under sub-paragraph (a) of Article 5 § 1.
- The
Court further considers that the applicant’s preventive
detention beyond the ten-year point was also not justified under any
of the other sub paragraphs of Article 5 § 1. In
particular, that detention was not justified as detention “reasonably
considered necessary to prevent his committing an offence”
under sub-paragraph (c) of that provision. The applicant’s
potential further offences were not sufficiently concrete and
specific, as required by the Court’s case-law, as regards, in
particular, the place and time of their commission and their victims,
and do not, therefore, fall within the ambit of Article 5 § 1
(c) (compare, mutatis mutandis, M. v. Germany,
cited above, § 102). Nor is the Court satisfied that the
domestic courts, which were called upon to determine whether the
applicant was liable to reoffend owing to his criminal tendencies,
based their decision to retain the applicant in preventive detention,
executed in prison, on the ground that he suffered from a serious
mental disorder and was thus “of unsound mind” within the
meaning of sub-paragraph (e) of Article 5 § 1.
- The
Court is aware of the fact that the domestic courts ordered the
applicant’s preventive detention beyond a period of ten years
because they considered that there was still a risk that the
applicant might commit serious sexual offences, in particular rape,
if released. They thus acted in order to protect potential victims
from physical and psychological harm amounting to inhuman or
degrading treatment which might be caused by the applicant. Under the
Court’s well-established case-law, States are indeed required
under Article 3 to take measures designed to ensure that individuals
within their jurisdiction are not subjected to torture or inhuman or
degrading treatment, including such ill-treatment administered by
private individuals (see, for example, A. v. the United Kingdom,
23 September 1998, § 22, Reports of Judgments and Decisions
1998 VI; M.C. v. Bulgaria, no. 39272/98, §§
149-150, ECHR 2003 XII; and Opuz v. Turkey, no. 33401/02,
§ 159, ECHR 2009 ...). These measures should provide
effective protection and include reasonable steps to prevent
ill-treatment of which the authorities had or ought to have had
knowledge (see, inter alia, Z and Others v. the United
Kingdom [GC], no. 29392/95, § 73, ECHR 2001 V;
D.P. and J.C. v. the United Kingdom, no. 38719/97, § 109,
10 October 2002; compare also, in the context of Article 2,
Mastromatteo v. Italy [GC], no. 37703/97, §§
67-68, ECHR 2002 VIII).
- However,
the Court has also repeatedly held that the scope of any positive
obligation on State authorities to take preventive operational
measures to protect individuals from the criminal acts of another
individual must take into consideration the need to ensure that the
authorities exercise their powers to control and prevent crime in a
manner which fully respects the due process and other guarantees
which legitimately place restraints on the scope of their action,
including the guarantees contained, in particular, in Article 5 of
the Convention (see, mutatis mutandis, Osman v. the United
Kingdom, 28 October 1998, § 116, Reports 1998 VIII;
and Opuz, cited above, § 129). In other words, the
Convention obliges State authorities to take reasonable steps within
the scope of their powers to prevent ill treatment of which they
had or ought to have had knowledge, but it does not permit a State to
protect individuals from criminal acts of a person by measures which
are in breach of that person’s Convention rights, in particular
the right to liberty as guaranteed by Article 5 § 1.
- Consequently,
the State authorities could not, in the present case, rely on their
positive obligations under the Convention in order to justify the
applicant’s deprivation of liberty which, as has been shown
above (see paragraphs 32-35), did not fall within any of the
exhaustively listed permissible grounds for a deprivation of liberty
under sub-paragraphs (a) to (f) of Article 5 § 1. That
provision can thus be said to contain all grounds on which a person
may be deprived of his liberty in the public interest, including the
interest in protecting the public from crime.
- There
has accordingly been a violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
- The
applicant further complained that the retrospective extension of his
first preventive detention from a maximum period of ten years to an
unlimited period of time due to the amendment in 1998 of Article 67d
§§ 1 and 3 of the Criminal Code, read in conjunction with
section 1a § 3 of the Introductory Act to the Criminal Code (see
paragraphs 24-25), breached his right not to have a heavier penalty
imposed on him than the one applicable at the time of his offence. He
relied on Article 7 § 1 of the Convention, which provides:
“No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a
criminal offence under national or international law at the time when
it was committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the criminal offence was committed.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant, referring to the Court’s findings in the case of
M. v. Germany (cited above), considered that his
continued preventive detention beyond the period of ten years had
also violated Article 7 § 1 of the Convention.
- The
Government referred to their observations made in relation to Article
7 in the application of M. v. Germany (cited above) to which,
in terms of the temporal course of events, the present application
was comparable.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
- The
Court reiterates the relevant principles laid down in its case-law on
Article 7 of the Convention, which have been summarised in its
judgment of 17 December 2009 in the case of M. v. Germany
(cited above) as follows:
“118. Article 7 embodies, inter
alia, the principle that only the law can define a crime and
prescribe a penalty (nullum crimen, nulla poena sine lege).
While it prohibits in particular the retrospective application of the
criminal law to an accused’s disadvantage (see Kokkinakis v.
Greece, 25 May 1993, § 52, Series A no. 260 A) or
extending the scope of existing offences to acts which previously
were not criminal offences, it also lays down the principle that the
criminal law must not be extensively construed to an accused’s
detriment, for instance by analogy (see Uttley v. the United
Kingdom (dec.), no. 36946/03, 29 November 2005, and Achour v.
France [GC], no. 67335/01, § 41, ECHR 2006 IV).
...
120. The concept of “penalty” in
Article 7 is autonomous in scope. To render the protection afforded
by Article 7 effective the Court must remain free to go behind
appearances and assess for itself whether a particular measure
amounts in substance to a “penalty” within the meaning of
this provision (see Welch v. the United Kingdom, 9 February
1995, § 27, Series A no. 307 A; Jamil v. France, 8
June 1995, § 30, Series A no. 317 B; and Uttley,
cited above). The wording of Article 7 paragraph 1, second sentence,
indicates that the starting-point in any assessment of the existence
of a penalty is whether the measure in question is imposed following
conviction for a “criminal offence”. Other relevant
factors are the characterisation of the measure under domestic law,
its nature and purpose, the procedures involved in its making and
implementation, and its severity (see Welch, cited above, §
28; Jamil, cited above, § 31; Adamson v. the
United Kingdom (dec.), no. 42293/98, 26 January 1999; Van der
Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 XV;
and Kafkaris, cited above, § 142). The severity of the
measure is not, however, in itself decisive, since, for instance,
many non-penal measures of a preventive nature may have a substantial
impact on the person concerned (see Welch, cited above, §
32; compare also Van der Velden, cited above).”
(b) Application of these principles to the
present case
- In
determining whether the applicant’s preventive detention beyond
the initial ten-year point violated the prohibition of retrospective
penalties under Article 7 § 1, second sentence, the Court notes
that the applicant committed the sexual offence for which his
preventive detention was ordered in 1989. At that time, a preventive
detention order made by a sentencing court for the first time, read
in conjunction with Article 67d § 1 of the Criminal Code in the
version then in force (see paragraph 24 above), meant that the
applicant could be kept in preventive detention for ten years at the
most. Based on the subsequent amendment in 1998 of Article 67d of the
Criminal Code, read in conjunction with section 1a § 3 of the
Introductory Act to the Criminal Code (see paragraph 25 above), which
abolished that maximum duration with immediate effect, the courts
responsible for the execution of sentences then ordered, in the
proceedings here at issue, the applicant’s continued preventive
detention beyond the ten year point. Thus, the applicant’s
preventive detention – as that of the applicant in the case of
M. v. Germany – was prolonged with retrospective effect,
under a law enacted after the applicant had committed his offence.
- The
Court further refers to its conclusion in the case of M. v. Germany
(cited above, §§ 124-133) that preventive detention under
the German Criminal Code, having notably regard to the facts that it
is ordered by the criminal courts following a conviction for a
criminal offence and that it entails a deprivation of liberty which,
following the change in the law in 1998, no longer has any maximum
duration, is to be qualified as a “penalty” for the
purposes of the second sentence of Article 7 § 1 of the
Convention. It again sees no reason to depart from that finding in
the present case.
- The
Court would further note that its above observations on the scope of
the State authorities’ positive obligation to protect potential
victims from inhuman or degrading treatment which might be caused by
the applicant (see paragraphs 36-38 above) apply, a fortiori,
in the context of the prohibition of retrospective penalties under
Article 7 § 1, provision from which no derogation is allowed
even in time of public emergency threatening the life of the nation
(Article 15 §§ 1 and 2 of the Convention). The Convention
thus does not oblige State authorities to protect individuals from
criminal acts of the applicant by such measures which are in breach
of his right under Article 7 § 1 not to have imposed upon him a
heavier penalty than the one applicable at the time he committed his
criminal offence.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 7 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- In
the applicant’s submission, the retrospective abolition of the
maximum period of ten years for his preventive detention, whereby it
had become impossible for him to foresee when he would be released,
was also in breach of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument. They took the view that the
applicant failed to exhausted domestic remedies in respect of his
complaint under Article 3, as required by Article 35 § 1 of the
Convention. He had not raised, at least in substance and by reference
to the protection of human dignity and of physical integrity under
the Basic Law, his complaint that his continued preventive detention
had amounted to inhuman or degrading treatment or punishment before
the Federal Constitutional Court.
- The
applicant underlined that he had raised in substance a complaint
under Article 3 in that, in his constitutional complaint, he had
claimed, by reference to the right to liberty and to the prohibition
of retrospective punishment as guaranteed by the Basic Law, that his
retroactive placement in preventive detention had been unreasonable.
- The
Court observes that in the proceedings before the Federal
Constitutional Court, the applicant reasoned his complaint that his
prolonged preventive detention was disproportionate by claiming that
the therapy he was expected to make prior to his release would take
several years (see paragraph 15 above). It finds that the applicant,
who was represented by counsel, cannot be considered to have raised
at least in substance, by these submissions before the Federal
Constitutional Court, the complaint he now raises before the Court
that his prolonged preventive detention
constituted inhuman and degrading treatment. That court also did not
examine that complaint on the merits. The applicant’s complaint
under Article 3 must therefore be dismissed for non-exhaustion of
domestic remedies, pursuant to Article 35 §§ 1 and 4
of the Convention.
IV. OTHER ALLEGED VIOLATION OF THE CONVENTION
- Lastly,
the applicant claimed that his unlimited preventive detention for
offences he did not commit breached the presumption of innocence
guaranteed by Article 6 § 2 of the Convention.
- The
Court notes that, even assuming the applicability of Article 6, the
applicant failed to raise at least in substance
also this complaint in the proceedings before the Federal
Constitutional Court prior to bringing it before this Court. This
part of the application must therefore equally be dismissed for
non-exhaustion of domestic remedies, pursuant to Article 35 §§
1 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. The parties’ submissions
- The
applicant claimed 301,313.12 euros (EUR) in respect of pecuniary
damage. Submitting documentary evidence, he argued that owing to his
unlawful detention between 2002 and 2009, he had been unable to work
in his profession as a motor mechanic, to earn a salary which,
statistically, would have amounted to EUR 280,000 gross, and to
acquire pension rights. Moreover, he had had to pay EUR 8,693 to a
psychologist for a behaviour therapy and for the treatment of his
depressions in order to obtain the necessary psychological care
helping him to come to terms with his illegal preventive detention.
He could not be expected to have made a different therapy while in
illegal detention. Furthermore, he had been obliged to pay EUR
12,620.12 for an antibody therapy to cure a cancer of his eyes,
having refused a radiotherapy proposed by the prison authorities
which had entailed a risk to go blind. He alleged that a statutory
health insurance company, which would have been his insurer had he
lived in freedom, would have reimbursed the costs of the antibody
therapy.
- The
applicant further claimed that he had suffered non-pecuniary damage
in that his preventive detention in breach of the Convention from
24 October 2002 until 28 August 2009 had caused him distress and
frustration. He claimed at least EUR 27,467 under that head, that is,
EUR 11 per day of unlawful detention.
- The
Government took the view that the applicant could not claim any
compensation for pecuniary damage. He had failed to substantiate
sufficiently that he could have earned in practice the salary claimed
in his profession as a motor mechanic, which he had exercised only
for a couple of months since 1972. As for the medical fees paid to
his psychologist by his wife, the Government submitted that the
applicant could not claim the reimbursement of the costs of his
behaviour therapy he had not borne himself. The authorities had
refused to pay for that therapy because the applicant should have
made a more far-reaching social therapy in order to treat his
personality disorder. He had, however, refused to accept the prison
authorities’ repeated offers of such treatment which would also
have included help in order to deal with a long period of detention.
As for the costs for the antibody therapy to cure the cancer of his
eyes, the Government argued that those costs, paid again by his wife,
had not been caused by his allegedly illegal detention. There was
nothing to indicate that a compulsory health insurance company would
have reimbursed those costs had he been at liberty as the
radiotherapy offered to him had not entailed a substantial risk to go
blind.
- As
for the applicant’s claim in respect of non-pecuniary damage,
the Government left it to the Court’s discretion to fix an
equitable amount.
2. The Court’s assessment
- The
Court notes with regard to the applicant’s claim concerning
pecuniary damage that the applicant failed to demonstrate that it was
his preventive detention beyond the ten-year-point, in breach of
Article 5 § 1 and Article 7 § 1, which prevented him from
earning a salary as a motor mechanic he would have obtained
otherwise. Consequently, no clear causal connection between the
Convention violations and the applicant’s loss of estimated
earnings and pension rights has been established and the Court
therefore rejects the applicant’s claim in this respect. As to
the costs for his psychological treatment, the Court observes that
the applicant was offered a more comprehensive social therapy,
including help to deal with his long detention. Therefore, the costs
incurred for his behaviour therapy cannot be said to have been caused
by his detention in breach of the Convention. Finally, the applicant
failed to demonstrate that he would not have had to bear the costs of
the antibody therapy he chose to cure the cancer of his eyes had he
not been in detention at the relevant time; consequently, a causal
link between the violation found and the pecuniary damage alleged has
not been established in this respect either. Therefore, the Court
rejects the applicant’s claims for pecuniary damage.
- As
for the applicant’s claim for compensation for non-pecuniary
damage, the Court takes into consideration that the applicant was
detained in breach of the Convention from 24 October 2002 until his
release on 28 August 2009. This must have caused him
non-pecuniary damage such as distress and frustration, which cannot
be compensated solely by the finding of a Convention violation.
Having regard to all the circumstances of the case and making its
assessment on an equitable basis, it awards the applicant the amount
as calculated by him in respect of non-pecuniary damage, that is, EUR
27,467, in full, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant, submitting documentary evidence, also claimed a total of
EUR 8,325.27 (including VAT) for the costs and expenses incurred
before the domestic courts and before this Court. The costs and
expenses comprised lawyers’ fees of EUR 1,183.20 for the
constitutional complaint in the proceedings here at issue, lawyers’
fees of EUR 5,382.40 for another constitutional complaint and for the
representation before this Court, as well as further lawyers’
fees of EUR 1,759.67 for disciplinary proceedings and proceedings
concerning his medical treatment.
- The
Government considered that the applicant had not sufficiently
substantiated his claims for costs as the content of the agreements
between the applicant and his lawyers was not clear from the invoices
submitted.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers that only the costs incurred in the proceedings before the
Federal Constitutional Court in the proceedings here at issue and
those incurred in the proceedings before this Court were necessarily
incurred to prevent the Convention violations at issue. It considers
it reasonable to award the sum of EUR 4,000 covering costs under all
heads, plus any tax (including VAT) that may be chargeable to the
applicant.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 5 § 1
and Article 7 § 1 concerning the retrospective extension of the
applicant’s preventive detention beyond a period of ten years
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
7 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention;
(i) EUR
27,467 (twenty-seven thousand four hundred and sixty-seven euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR
4,000 (four thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
