Last Updated on November 22, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 46026/16
Jörg KEMPKES
against Germany
The European Court of Human Rights (Fifth Section), sitting on 24 September 2019 as a Committee composed of:
André Potocki, President,
Angelika Nußberger,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 28 July 2016,
Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, a German national, was born in 1965 and is currently detained in the centre for persons in preventive detention on the premises of Werl Prison. He was represented before the Court by Mr C. Huppertz, a lawyer practising in Aachen
2. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.
3. The applicant complained, in particular, under Article 5 § 1 of the Convention that his preventive detention was unlawful and thus breached his right to liberty in view of the domestic courts’ failure to comply with the statutory time-limit for judicial review of whether that detention was still necessary. He relied on the Court’s judgments in the cases of Schönbrod v. Germany (no. 48038/06, 24 November 2011) and H.W. v. Germany (no. 17167/11, 19 September 2013).
4. On 18 April 2018 notice of the complaint concerning Article 5 § 1 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
A. The circumstances of the case
1. Background to the case
5. By judgment of 7 June 1999, the Krefeld Regional Court convicted the applicant of rape, committed on 2 May 1998, and sentenced him to four years’ imprisonment. At the same time, it ordered his preventive detention under Article 66 § 3 of the Criminal Code, without a maximum duration. Having regard to the report of expert O., who had considered that the applicant suffered from a dissocial personality disorder, that court found that the applicant, who had previously assaulted four women and had served a prison sentence of three years and six months for a conviction of rape committed with sexual assault, had a propensity to commit serious offences which seriously harmed the victims, and was dangerous to the public. By aggregate-sentencing order of 14 June 2000, which took into account the applicant’s conviction by the Düsseldorf Regional Court of 8 January 1999 for, inter alia, three counts of assault, the Krefeld Regional Court imposed an aggregate sentence of five years and three months’ imprisonment and upheld the preventive detention order. The applicant served his prison sentence in full. He has been in preventive detention since 16 January 2004.
6. On 19 March 2013 the Aachen Regional Court refused to suspend the preventive detention order against the applicant. After the remedies pursued by the applicant before the Cologne Court of Appeal and the Federal Constitutional Court were to no avail, he submitted an application to this Court (no. 30860/15). On 11 October 2016 the Court struck that application out of its list of cases pursuant to Article 37 § 1 (c) of the Convention, in view of the Government’s unilateral declaration, which acknowledged a breach of Article 5 § 1 of the Convention because the domestic courts had significantly exceeded the statutory time-limit for reviewing the necessity of the applicant’s continued preventive detention.
2. The proceedings at issue
7. The present application concerns the set of review proceedings following those at issue in the applicant’s previous application. During the proceedings at issue, his preventive detention was executed in Aachen Prison.
8. On 10 June 2014 the Aachen Regional Court held an oral hearing, during which the applicant stated that he was no longer prepared to work with expert L., but willing to be examined by an expert of his own choice. That same day, the Regional Court refused to suspend the further enforcement of the preventive detention order against the applicant. It considered that the provisions governing preventive detention in the version in force until 31 May 2013 applied, in accordance with section 316f of the Introductory Act to the Criminal Code, and found that the applicant’s further preventive detention was necessary, as it could not be expected that he would not commit further serious offences, like those he had been found guilty of, if he were released (Article 67d § 2 of the Criminal Code). It based its assessment on a report by expert L. of 19 February 2013, which had been prepared for the previous review and noted that there had not been significant changes in the applicant’s personality since, not least because he refused all therapeutic measures. It did not consider itself to be obliged to appoint another expert as long as the applicant had not rejected the court‑appointed expert for legitimate reasons. In view of the applicant’s persisting personality disorder and resulting dangerousness, his further preventive detention was proportionate.
9. On 22 September 2014 the Cologne Court of Appeal quashed the Regional Court’s decision and remitted the case to it. It stated that there had been no assessment satisfying the requirements of section 316f § 2, second sentence, of the Introductory Act to the Criminal Code. Under that provision, the continuation of preventive detention beyond ten years, as in the applicant’s case from 16 January 2014 onwards, shall be permissible only if the individual concerned had a mental disorder within the meaning of the Therapy Detention Act and, owing to specific circumstances relating to his person and his conduct, there was a high risk that he would commit the most serious crimes of violence or sexual offences as a result of that disorder. The findings necessary to reach that conclusion – which required expert advice – had not yet been made. The report by expert L. of 19 February 2013 was based on the previous legal situation. It could not form the basis of the present review decision because stricter standards had since become applicable to ordering the applicant’s continued placement in preventive detention. Consequently, the Regional Court had to obtain the relevant expert opinion following the remittal. The Court of Appeal could, at this point, not determine whether the preventive detention would have to be suspended.
10. The Court of Appeal added that the Regional Court’s review decision of 10 June 2014 did not comply with the statutory time-limit for judicial review. As the applicant had been in preventive detention for less than ten years at the time of the last review decision of the Aachen Regional Court of 19 March 2013, the statutory time-limit for judicial review under Article 67e of the Criminal Code was one year (see paragraph 18 below), and thus expired on 19 March 2014. This failure to comply with the said time-limit did, as such, constitute a fundamental rights violation, which, however, did not call for the applicant’s release. In cases like the present one, where the review proceedings had only been delayed for a couple of months, the public’s interest in being protected from serious unlawful acts outweighed the interests of the detainee (see paragraph 20 below). The Regional Court was not responsible for severe omissions in this respect, as it had initiated the review proceedings in good time and the delays which occurred were, mostly, not attributable to it. The further delays that were due to occur following the quashing of the Regional Court’s decision and the remittal of the case to it, with a view to obtaining additional expert evidence, did not lead to a different result.
11. Following the return of the files on 10 October 2014, the Regional Court, by order of 14 October 2014, gave both the applicant and the prosecution authorities the opportunity to appoint an expert within a time‑limit of ten days. Following a motion by the applicant of 27 October 2014, he was granted an extension until 7 November 2014. On 13 November 2014 the Regional Court commissioned the external expert R. On 30 December 2014 R. informed the applicant of the examination appointment scheduled for 22 January 2015. That day, the applicant felt too tired to be examined and the examination was rescheduled for 25 February 2015. The Regional Court received R.’s report on 6 March 2015. Three days later, it forwarded the report to the applicant and to the prosecution authorities for observations within two weeks. Following the expiry of that time-limit it scheduled, on 2 April 2015, an oral hearing for 15 May 2015, the earliest date that both the applicant’s counsel and R. could attend. In the meantime, it also requested observations from the Aachen prison authorities, which were filed on 12 May 2015.
12. On 15 May 2015 the Regional Court again refused to suspend the further enforcement of the preventive detention order (Article 67d §§ 2 and 3 of the Criminal Code). It considered that, contrary to the Court of Appeal’s view, the stricter requirements of section 316f § 2, second sentence, of the Introductory Act to the Criminal Code did not have to be met in the applicant’s case: that provision concerned situations where the first-time preventive detention had been executed for more than ten years and the underlying offence had been committed prior to 31 January 1998 (when the former maximum duration of ten years was abolished); the underlying offence, due to which the applicant’s preventive detention was ordered, was committed on 2 May 1998, when legislation no longer provided for a maximum duration of first-time preventive detention. However, this aspect was in any event not decisive, as even the stricter requirements for ordering the applicant’s further preventive detention were satisfied. The Regional Court endorsed R.’s findings that the applicant suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act, namely a dissocial personality disorder (ICD-10), and that there remained a high risk that he would commit the most serious sexual offences owing to that disorder. His further preventive detention was proportionate.
13. On 27 August 2015 the Court of Appeal rejected the applicant’s immediate complaint. Deviating from its earlier position, it concurred with the Regional Court’s conclusion that the applicant’s case did not fall within the scope of section 316f § 2, second sentence, of the Introductory Act to the Criminal Code. However, obtaining a fresh expert assessment had been necessary due to the constitutional requirement to establish the facts as precisely as possible. It considered that the applicant continued to refuse all therapeutic measures, that his personality disorder and dangerousness persisted and that there was a high risk that the applicant would commit serious sexual offences resulting in significant psychological or physical harm to the victims. The requirements for suspending the preventive detention order were not met.
14. In so far as the applicant had alleged a breach of his right to liberty by the failure to comply with the statutory time-limit for periodic judicial review under Article 67e of the Criminal Code, the Court of Appeal noted that its decision of 22 September 2014 quashing the Regional Court’s review decision of 10 June 2014 did not render the latter undone. It was inherent to an appellate system that a review decision may be quashed. A resulting failure to comply with the statutory time-limit could not constitute a fundamental rights violation warranting the detainee’s release, if the review decision following the remittal of the case was taken speedily (mit der gebotenen Beschleunigung). That latter requirement had been satisfied in the present case.
15. On 20 January 2016 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination, without providing reasons (no. 2 BvR 2514/16). The decision was served on the applicant’s counsel on 28 January 2016.
B. Relevant domestic law and practice
16. A comprehensive summary of domestic law and practice, and reforms of the preventive detention regime in Germany, as well as relevant comparative law and international material is contained inIlnseher v. Germany ([GC], nos. 10211/12 and 27505/14, §§ 48-98, 4 December 2018). In respect of the duration of such detention issued by the sentencing court see paragraph 49 of the Ilnseher judgment as well Bergmann v. Germany (no. 23279/14, §§ 49-53, 7 January 2016), the latter also containing the transitional provision of section 316f of the Introductory Act to the Criminal Procedure.
17. Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further enforcement of preventive detention should be suspended and a measure of probation applied, or whether it should be terminated, and is obliged to carry out such a review within fixed time‑limits (paragraph 1 of Article 67e). The requirements under domestic law in respect of the establishment of the facts in proceedings for judicial review of the necessity of further detention are summarised in H.W.v. Germany (no. 17167/11, §§ 47-49, 19 September 2013).
18. Under Article 67e § 2 of the Criminal Code, as in force since 1 June 2013, the time-limit for periodic review of preventive detention is one year; the time-limit is reduced to nine months once the person has been in preventive detention for ten years. The time of the interval for the periodic review under Article 67e of the Criminal Code starts to run when the competent court refuses to terminate or suspend the enforcement of a preventive detention order, even if that decision does not become final (see, for example, Nuremberg Court of Appeal, no. 2 Ws 154/14, decision of 29 April 2014). If a review decision is quashed on appeal and the case is remitted, the court to which the case is remitted has to decide within the time-limit of Article 67e § 2 of the Criminal Code; it is not necessary to pursue another set of review proceedings in parallel (ibid.).
19. According to the well-established case-law of the Federal Constitutional Court, failure of the courts dealing with the execution of sentences to comply with the statutory time-limit under Article 67e of the Criminal Code for periodic review of the question of whether the preventive detention of the person concerned was still necessary in view of its objective (Article 67d of the Criminal Code) may violate the constitutional right to liberty if there has been an unjustifiably wrong attitude towards the said procedural right which discloses a fundamentally wrong view on the importance of the right to liberty (see, for example, Federal Constitutional Court, no. 2 BvR 1103/16, decision of 10 October 2016, with further references). The provisions on periodic review of the execution of a preventive detention order serve to safeguard the proportionality of restrictions to the constitutional right to liberty (ibid.). However, not every delay which results in a failure to comply with the said time-limits automatically leads to a fundamental rights violation, as delays may occur even in proceedings which are conducted with diligence (ibid.). In the event of a failure to comply with the said time-limit, the reasons have to be explained in the review decision in order to respect the procedural safeguards of the constitutional right to liberty and to allow courts subsequently dealing with the case to determine whether the detainee’s fundamental rights were adequately taken into account (Federal Constitutional Court, no. 2 BvR 1665/10, decision of 29 November 2011). It must follow from the reasons provided that the proceedings were conducted in a diligent way with the aim of rendering the review decision in good time (Federal Constitutional Court, no. 2 BvR 1103/16, decision of 10 October 2016).
20. A violation of the constitutional right to liberty by the inaction of the courts dealing with the execution of sentences in the review proceedings does not automatically warrant the detainee’s release (Federal Constitutional Court, no. 2 BvR 2004/04, decision of 16 November 2004). If the public interest in being protected from serious unlawful acts outweighs the interests of the detainee because the review proceedings had only been delayed for a couple of months, the detainee’s release is not called for (ibid.).
COMPLAINT
21. The applicant complained under Article 5 § 1 of the Convention that his preventive detention was unlawful and thus breached his right to liberty in view of the domestic courts’ failure to comply with the statutory time‑limit for judicial review of whether that detention was still necessary. Relying on the Court’s judgments in the cases of Schönbrod v. Germany (no. 48038/06, 24 November 2011) and H.W. v. Germany (no. 17167/11, 19 September 2013), he argued that his detention had thus been rendered arbitrary. The Aachen Regional Court had ordered that detention to continue on 10 June 2014, nearly three months after the expiry, on 19 March 2014, of the statutory time-limit. There had been additional delays in the further course of the proceedings. Moreover, there had not been a ground justifying his deprivation of liberty. He was notably not “of unsound mind” within the meaning of Article 5 § 1 (e) of the Convention.
THE LAW
A. The Government’s unilateral declaration
22. Following communication of the case and failure to reach a friendly settlement, the Government informed the Court by letter of 17 September 2018 that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
23. The declaration provided as follows:
“…
2. The Federal Government regrets that no friendly settlement with the Applicant could be reached. Because the Federal Government acknowledges that the Convention has been violated, it hereby submits to the Court the following unilateral declaration:
3. The Federal Government recognises that the Applicant’s rights arising from Article 5 para. 1 of the Convention were violated by the review decision by [the] Aachen Regional Court dated 10 June 2014. …
4. Should the Court decide to strike this Application out of its list of cases, the Federal Government is prepared to recognise the Applicant’s compensation claim in the amount of EUR 2,500.00. This sum of EUR 2,500.00 would be deemed to settle all potential claims of the Applicant in connection with the above-mentioned Application and the review decisions of [the] Aachen Regional Court dated 10 June 2014 and 15 May 2015 against the Federal Republic of Germany and the Land of North-Rhine Westphalia, including in particular compensation for the Applicant’s damage (including non-pecuniary damage) as well as costs and expenses. In light of the Court’s rulings in similar cases, the Federal Government considers the amount of EUR 2,500.00 to be reasonable. It must be taken into account that the Applicant’s defence counsel also contributed to the period for review – which expired on 19 March 2014 – being exceeded, because the date for an oral hearing of the Applicant set for 12 December 2013 had to be postponed to 16 January 2014 due to the unavailability of the Applicant’s defence counsel.
5. The Federal Government therefore requests that this Application be struck out of the Court’s list of cases pursuant to Article 37 para. 1 (c) of the Convention. The Federal Government’s acknowledgement of a violation of Article 5 para. 1 of the Convention and its acceptance of a claim for compensation in the amount of EUR 2,500.00 constitutes ‘[an]other reason’ within the meaning of that provision.
…”
24. By letter of 4 October 2018, the applicant indicated that he would not comment on the terms of the unilateral declaration. According to the Court’s well-established practice, this is to be understood as a rejection of the declaration.
25. In their subsequent observations, the Government maintained the scope of their unilateral declaration and explained that the proposed amount of 2,500 euros (EUR) comprised approximately EUR 1,300 euros in compensation for non-pecuniary damage, which was more than adequate in view of the amounts awarded by the Court in similar cases given that only approximately two months of the delay between 19 March 2014 and 10 June 2014 were attributable to the authorities, as well as approximately EUR 1,200 in respect of costs and expenses. They submitted that the costs claimed by the applicant in his observations were excessive and that the sum they proposed corresponded to the amount of statutory reimbursement. They further maintained their request that the Court strike out the application in its entirety.
26. In his observations, the applicant claimed costs in the amount of EUR 2,885.51 in respect of his constitutional complaint. He did not submit any documents such as a fee agreement with his counsel or an invoice.
27. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if:
“… for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
28. The Court also reiterates that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government, even if the applicant wishes the examination of the case to be continued.
29. To this end, the Court has regard to the principles established in its case-law in respect of unilateral declarations, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also Jeronovičs v. Latvia ([GC], no. 44898/10, §§ 64-71, ECHR 2016).
30. The Government’s declaration acknowledged a breach of Article 5 § 1 of the Convention by the Regional Court’s belated review decision of 10 June 2014. At the same time, the declaration stated that the proposed compensation would be deemed to settle all potential claims of the applicant in connection with the Regional Court’s review decisions of 10 June 2014 and 15 May 2015. In respect of that latter decision of the Regional Court, no breach of the applicant’s Convention rights had been acknowledged in the Government’s declaration. The applicant had alleged additional delays in the further course of proceedings after the Regional Court’s decision of 10 June 2014 and the Court had communicated a question as to whether the Regional Court had acted with the necessary diligence following the remittal of the case by the Court of Appeal’s decision of 22 September 2014.
31. In their subsequent observations, the Government explained that the proposed amount comprised approximately EUR 1,300 in compensation for non-pecuniary damage and submitted that that amount was more than adequate in view of the amounts awarded by the Court in similar cases given that only approximately two months of the delay between 19 March 2014 and 10 June 2014 were attributable to the authorities. They submitted that there had been no further delays attributable to the authorities, notably after the Court of Appeal’s decision of 22 September 2014, and maintained their request that the Court strike the application out of its list of cases in its entirety on the basis of their unilateral declaration (compare and contrast Storck v. Germany (dec.), no. 486/14, § 60, 26 June 2018).
32. In view of the foregoing, the Court concludes that the Government appear to consider that the only period of the applicant’s detention that raises an issue of compatibility with Article 5 § 1 of the Convention was that between the expiry of the time-limit for judicial review on 19 March 2014 and the Regional Court’s decision of 10 June 2014. It proceeds on the understanding that the Government intend to resolve that part of the application by way of the unilateral declaration.
33. That issue is comparable to that raised in H.W. v. Germany (cited above), in which the Court has established its practice concerning breaches of Article 5 § 1 of the Convention on account of the failure of the domestic courts to comply with the statutory time-limits for judicial review of whether a person’s preventive detention was still necessary.
34. Having regard to the nature of the admissions contained in the Government’s declaration as well as the amount of compensation proposed – which, for the period at issue, corresponds to the amounts awarded by the Court in similar cases – the Court considers that it is no longer justified to continue the examination of the application in so far as it relates to the applicant’s detention from 19 March 2014 to 10 June 2014 (Article 37 § 1 (c)).
35. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of that part of the application (Article 37 § 1 in fine).
36. As regards the applicant’s preventive detention following the Court of Appeal’s decision of 22 September 2014 until the Regional Court’s second review decision of 15 May 2015, the Court is unable to arrive at the same conclusion. The applicant had alleged additional delays in the further course of the proceedings, the Court had communicated a question concerning the diligence displayed by the Regional Court in that period, and the Government had not acknowledged a breach of the applicant’s Convention rights in this respect, but stated that the compensation proposed in their declaration would be deemed also to settle the applicant’s potential claims in connection with the Regional Court’s decision of 15 May 2015. This part of the application furthermore raises a question that differs from that adjudicated in H.W. v. Germany (cited above) and other preventive detention cases, notably whether the Regional Court’s second review decision, taken almost eight months after the remittal of the case to it, namely the applicant’s preventive detention until then, complied with the requirements of Article 5 § 1 of the Convention. Thus, the Court cannot conclude that the above-mentioned requirements for striking that part of the application out of its list cases under Article 37 § 1 of the Convention are satisfied.
37. The Government’s request for the application to be struck out of the Court’s list of cases in its entirety under Article 37 of the Convention must therefore be rejected.
38. The Court reiterates that the list of considerations set out in the Tahsin Acar judgment to be taken into account when deciding whether to strike out a case, or part thereof, under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration, was not intended to be exhaustive. Depending on the particulars of each case, it is conceivable that further considerations may come into play in the assessment of a unilateral declaration for the purposes of Article 37 § 1 (c) of the Convention (Tahsin Acar, cited above, § 77). The Court reiterates its understanding that the Government appear to consider that the applicant’s preventive detention between the expiry of the time-limit for judicial review on 19 March 2014 and the Regional Court’s decision of 10 June 2014 was the only part of the application raising an issue of compatibility with Article 5 § 1 of the Convention, that they intend to resolve that part of the application on the basis of the unilateral declaration, and that the requirements for striking the application out of its list of cases in respect of that period are satisfied.
39. Under these circumstances, it is not appropriate to reject also the Government’s request for the application to be struck out of the Court’s list of cases under Article 37 of the Convention in respect of that period of the applicant’s detention.
40. The Court considers that the amount of EUR 2,500 should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the Convention. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank, plus three percentage points.
41. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, that part of the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
42. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the applicant’s detention between the expiry of the time-limit for judicial review on 19 March 2014 and the Regional Court’s decision of 10 June 2014. At the same time, the Government’s request to strike the remainder of the application out of its list of cases must be rejected.
B. The applicant’s preventive detention from 10 June 2014 onwards
1. The parties’ submissions
43. The Government submitted that Aachen Regional Court acted with the necessary diligence as regards the requirement to take a decision speedily on the necessity of the applicant’s further preventive detention following the remittal of the case by the Court of Appeal. A delay of approximately one and a half months was attributable to the applicant, notably the extension of the time-limit concerning the expert’s appointment following his request, and the re-scheduling of the examination by the expert. There had been no delays that were attributable to the authorities. The Regional Court had to appoint a new expert, who had not previously dealt with the applicant’s case. Given that the external expert R. had to study the extensive case-file and earlier expert opinions, conduct an in‑person examination of the applicant, and subsequently prepare a written report answering complex psychiatric questions, he prepared his report speedily. The Regional Court sent the report to the parties three days after receiving it, in order to obtain their comments, in accordance with their right to be heard. Following the receipt of these comments, the Regional Court swiftly set a date for an oral hearing, and then took a decision on the day of that hearing.
44. The applicant argued that there had been additional delays in the further course of the proceedings following the Regional Court’s decision of 10 June 2014. Moreover, there had not been a ground justifying his deprivation of liberty. He was notably not “of unsound mind” within the meaning of Article 5 § 1 (e) of the Convention.
2. The Court’s assessment
(a) General principles
45. The Court reiterates that sub-paragraphs (a) to (f) of Article 5 § 1 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. The applicability of one ground does not necessarily preclude that of another; detention may, depending on the circumstances, be justified under more than one sub-paragraph (Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 126, 4 December 2018, with further references). The relevant principles in respect of the justification under Article 5 § 1 (a) of the Convention of preventive detention ordered together with a criminal conviction is contained in D.J. v. Germany, (no. 45953/10, §§ 57-62, 7 September 2017). The relevant principles concerning the preventive detention of a person as being “of unsound mind” within the meaning of Article 5 § 1 (e) of the Convention have recently been summarised in the Ilnseher judgment (ibid., §§ 127-141).
46. One of the relevant elements in assessing whether a person’s detention must be considered arbitrary for the purposes of Article 5 § 1 of the Convention is the speed with which the domestic courts replaced a detention order which had either expired or had been found to be defective, with other relevant elements being, inter alia, the existence of adequate safeguards to ensure that the release from detention would not be unreasonably delayed, whether the applicant contributed to the delays caused in the procedure or objected to a foreseeable delay, as well as whether the delay could be attributed to the complexity of the proceedings (see H.W. v. Germany, cited above, §§ 68-73).
(b) Application of these principles to the present case
47. In determining whether the applicant’s detention complied with Article 5 § 1, the Court observes it might be justified under both sub‑paragraph (a) of Article 5 § 1 as lawful detention of a person “after” conviction by a competent court and under sub-paragraph (e) of that provision as detention of a person of “unsound mind”.
48. The applicant’s preventive detention was ordered by the Krefeld Regional Court on 7 June 1999 together with his conviction for rape, committed on 2 May 1998, and subsequently upheld by that court’s aggregate-sentencing order of 14 June 2000 (see paragraph 5 above). There was no maximum period for the applicant’s preventive detention laid down in legislation at the time of the applicant’s offence and conviction, nor was one set by the sentencing court. Both the sentencing court’s order of preventive detention and the impugned decisions not to release the applicant were based on the same ground, that is, that there was a high risk that the applicant would commit further serious offences, like the one he had been found guilty of by the sentencing court, and was thus dangerous to the public. The applicant was also offered the necessary means, such as suitable therapy, to reduce his dangerousness. While the Regional Court’s decision of 10 June 2014 was quashed by the Court of Appeal, and the Court of Appeal had, also in its decision of 27 August 2015, considered that it had been necessary to obtain a fresh expert assessment in order to establish the facts as precisely as possible, the Court notes that the Regional Court had based its assessment in the said decision on expert advice obtained a little over a year earlier in the previous set of review proceedings and had considered that there had not been significant changes in respect of the applicant’s dissocial personality disorder in view of his refusal of all therapeutic measures (see paragraph 8 above and D.J. v. Germany, cited above, §§ 60-62). After remittal of the case, the Regional Court obtained fresh external expert advice, confirming that the applicant’s dangerousness persisted, and thus relied on recent medical expertise. The decision not to release the applicant was thus not based on an assessment that was unreasonable in terms of those objectives pursued. There remained a sufficient causal connection between the applicant’s conviction in 1999 and his continued deprivation of liberty ordered in 2014/2015 for the purposes of sub-paragraph (a) of Article 5 § 1. In view of that finding, it can be left open whether the applicant’s detention could also be justified under sub‑paragraph (e) of Article 5 § 1.
49. In so far as the applicant alleged that his continued preventive detention, following the review decisions relying on Article 67d §§ 2 and 3 of the Criminal Code, had been unlawful because the domestic courts had failed to comply with the statutory time-limit for judicial review on the continued necessity of that detention and there had been additional delays, the Court reiterates that the period between the expiry of that time-limit on 19 March 2014 and the Regional Court’s decision of 10 June 2014 is covered by the Government’s unilateral declaration (see paragraphs 22-42 above). The Court understands the applicant’s complaint about further delays in the course of the review proceedings as alleging that the Regional Court had not taken another review decision with the required speed following the Court of Appeal’s decision of 22 September 2014 quashing the said decision of the Regional Court and remitting the case to it. Following that remittal, the Regional Court rendered its subsequent review decision on 15 May 2015, again refusing to suspend the further enforcement of the preventive detention order.
50. The Court observes that neither the Regional Court in its decision of 15 May 2015 nor the Court of Appeal in its decision of 27 August 2015 pronounced themselves on the date by which the Regional Court had to render its decision following the remittal of the case. The parties have not made submissions on this aspect either. While noting that the interval for the purposes of Article 67e of the Criminal Code started to run with the Regional Court’s decision of 10 June 2014 and that the applicant had been in preventive detention for more than ten years at that time – which would seem to speak in favour of the interval being reduced to nine months (see paragraph 18 above) –, the Court reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law.
51. The Court of Appeal considered, in its decision of 22 September 2014, that the further delays that were due to occur following the quashing of the Regional Court’s decision and the remittal of the case to it, did not warrant the applicant’s release (see paragraph 10 above). In its decision of 27 August 2015, it noted that the Regional Court’s second review decision following the remittal was taken speedily (see paragraph 14 above). In view of those findings, as well as the Federal Constitutional Court’s case-law (see paragraphs 19-20 above), the Court is prepared to accept that the applicant’s preventive detention remained lawful under domestic law during the period at issue (compare H.W. v. Germany, cited above, §§ 76-80).
52. The present case differs from that of H.W. v. Germany (cited above), in which the domestic authorities had known the relevant deadline in the review proceedings long in advance and had nonetheless initiated the proceedings belatedly (ibid., §§ 87-88). The same cannot be said in respect of the foreseeability that the Court of Appeal would quash the Regional Court’s earlier review decision and remit the case to it. The ensuing necessity for the Regional Court to obtain additional expert evidence inevitably entailed considerable complexity of the proceedings (compare and contrast H.W. v. Germany, cited above, where the domestic courts had not consulted a medical expert on the applicant’s dangerousness, which in and of itself led to the Court finding a breach of Article 5 § 1 of the Convention) as well as a significant duration until that court could assess another time whether the further enforcement of the preventive detention order could be suspended.
53. Following the return of the files to it on 10 October 2014, the Regional Court on 14 October 2014 contacted both the prosecution authorities and the applicant with a view to choosing an expert, setting a deadline for 24 October 2014. There had thus not been a delay in initiating the proceedings following the remittal of the case and the short deadline set indicates that the Regional Court intended to conduct the proceedings speedily. Given the applicant’s prior refusal to cooperate with an expert, it was sensible for the Regional Court to extend the respective deadline at the applicant’s request. The resulting delay of approximately two weeks is attributable to the applicant.
54. As regards delays in the further course of the proceedings, the Court observes that the preparation of the expert’s report was delayed by approximately one month because the in-person examination had to be rescheduled since the applicant had felt too tired to be examined on the date initially foreseen. While neither this nor his earlier request for an extension of the deadline concerning the choice of an expert constituted flawed behaviour on the part of the applicant, he nonetheless contributed to the delays amounting to approximately seven weeks. This marks another significant difference to the case of H.W. v. Germany, where the applicant had neither contributed to any delays nor accepted them (cited above, §§ 84‑85).
55. The Government explained that both the expert R. and the Regional Court had acted with the necessary diligence as regards speedily taking a decision on the necessity of the applicant’s further preventive detention. The applicant did not substantiate his allegation that there had been delays during that part of the review proceedings. The Court notes that more than two months elapsed between the receipt of the expert’s report on 6 March 2015 and the Regional Court’s decision on 15 May 2015. This involved a period of two weeks for the applicant and the prosecution authorities to comment on the expert’s report in line with their right to be heard. Most of the delay, however, was caused by the unavailability of the expert and the applicant’s counsel for the purposes of an oral hearing (see paragraph 11 above). This delay is not attributable to the authorities.
56. While the duration of more than seven and a half months – from 22 September 2014 to 15 May 2015 – was considerable until the Regional Court had taken another decision as to whether the further enforcement of the preventive detention order against the applicant could be suspended, the Court finds that the domestic courts acted with the necessary diligence to avoid the applicant’s detention becoming arbitrary and thus contrary to Article 5 § 1 of the Convention. The speed with which the domestic courts replaced a detention order that had been found to be defective being only one of the relevant elements to be taken into account in determining whether a person’s detention must be considered arbitrary (see paragraph 46 above), it notes that the proceedings were complex and required obtaining fresh external expert evidence, that the applicant was consulted prior to the choice of expert, that the parties were given the opportunity to comment on the expert’s report prior to the oral hearing, that an oral hearing was held, that the applicant had contributed to causing one and a half months’ delay, while there had been no delay attributable to the authorities.
57. The Court concurs with the Court of Appeal that its decision of 22 September 2014 quashing the Regional Court’s review decision of 10 June 2014 did not render the latter undone and that it was inherent to an appellate system that a review decision may be quashed (see paragraph 14 above). Moreover, it would be contrary to the purpose of Article 5 § 1 of the Convention, which is to protect individuals from arbitrary deprivation of liberty, if it resulted in a breach of that provision, when a court entrusted with reviewing the necessity of further preventive detention consulted an external medical expert to determine whether the detainee’s dangerousness persisted, which inevitably entails delays, as long as that court acts with the necessary diligence, as it did in the present case.
58. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s preventive detention from 10 June 2014 onwards was in conformity with Article 5 § 1 of the Convention. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
1. Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
2. Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it relates to the applicant’s detention until 10 June 2014;
3. Rejects the Government’s request to strike the remainder of the application out of its list of cases;
4. Declares the remainder of the application inadmissible.
Done in English, and notified in writing on 17 October 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško André Potocki
Deputy Section Registrar President
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