issued by the Registrar of the Court

no. 339

14.04.2011

Retroactive extension of prisoner’s preventive detention not

justified by State’s obligation to protect potential victims

today’s

Chamber

judgment

the

case

Jendrowiak

Germany

(application no. 30060/04), which is not final¹, the European Court of Human Rights

held, unanimously, that there had been:

A violation of Article 5 § 1 (right to liberty and security) of the European

Convention on Human Rights and

A violation of Article 7 § 1 (no punishment without law).

The case concerned the applicant’s complaint that his preventive detention was

retrospectively extended beyond the maximum period of ten years authorised at the

time of his offence.

Principal facts

The applicant, Richard Jendrowiak, is a German national who was born in 1953. After a

history of several previous convictions of rape and attempted rape, the Heilbronn

Regional Court convicted him of attempted sexual coercion and sentenced him to three

years’ imprisonment in May 1990. At the same time, the court ordered his placement in

preventive detention, holding that Mr Jendrowiak had a tendency to commit serious

sexual offences and was thus likely to reoffend.

After having served his full prison sentence, Mr Jendrowiak was placed in preventive

detention, the continuation of which was ordered at regular intervals. In October 2002,

he had served ten years in preventive detention, which had been the maximum period

for a first period of preventive detention under the law in force at the time of his offence

and conviction. Pursuant to Article 67d § 3 of the Criminal Code as amended in 1998,

which allowed the duration of a convicted person's preventive detention to be extended

to an unlimited period of time, the Karlsruhe Regional Court ordered Mr Jendrowiak’s

preventive detention to continue. Relying on a psychiatric expert opinion, it found that

Mr Jendrowiak, whose situation and attitude had not changed and who refused therapy,

was likely to reoffend if released. The decision was upheld by the court of appeal.

On 22 March 2004, the Federal Constitutional Court declined to consider Mr Jendrowiak’s

constitutional complaint. It referred to its leading judgment of February 2004 in another

case (subsequently an application before the European Court of Human Rights, M. v.

Germany²), in which it had held that Article 67d § 3 of the Criminal Code was

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

M. v. Germany (19359/04), Chamber judgment of 17.12.2009

constitutional and that the prohibition of retrospective punishment under the German

Basic Law did not extend to measures such as preventive detention, which had always

been understood as differing from penalties under the Criminal Code’s twin-track system

of penalties on the one hand and measures of correction and prevention on the other.

In August 2009, Mr Jendrowiak, who had been diagnosed with cancer, was released, his

preventive detention having been suspended on probation by the Karlsruhe Regional

Court.

Complaints, procedure and composition of the Court

Relying in particular on Articles 5 § 1 and 7 § 1, Mr Jendrowiak complained of the

retrospective extension of his preventive detention – until his release - beyond the

maximum period of ten years authorised at the time of his offence.

The application was lodged with the European Court of Human Rights on 10 August

2004.

Judgment was given by a Chamber of seven, composed as follows:

Dean Spielmann (Luxembourg), President,

Karel Jungwiert (the Czech Republic),

Boštjan M. Zupančič (Slovenia),

Mark Villiger (Liechtenstein),

Isabelle Berro-Lefèvre (Monaco),

Ann Power (Ireland),

Angelika Nußberger (Germany), Judges,

and also Claudia Westerdiek, Section Registrar.

Decision of the Court

Article 5 § 1

In terms of the temporal course of events, Mr Jendrowiak’s case was a follow-up case to

the application M. v. Germany, in which the Court found that the retroactive extension of

a prisoners’ preventive detention had not been justified.

The Court saw no reason to depart from its findings in that judgment. It considered that

there had been no sufficient causal connection between Mr Jendrowiak’s conviction by

the sentencing court and his continued deprivation of liberty beyond the period of ten

years in preventive detention to be covered by Article 5 § 1 (a) as being detention "after

conviction" by the sentencing court. When the sentencing court ordered his preventive

detention in 1990, that decision meant that he could be kept in that form of detention

for a clearly defined maximum period. Without the amendment of the Criminal Code in

1998 the court responsible for the execution of sentences would not have had

jurisdiction to extend the duration of the detention.

Mr Jendrowiak’s continued detention had not been justified under any of the other sub-

paragraphs of Article 5 § 1. In particular, it had not been justified by the risk that he

could commit further serious offences if released, as those potential offences were not

sufficiently concrete and specific so as to fall under sub-paragraph (c) of Article 5 § 1.

The Court was aware of the fact that the domestic courts had ordered Mr Jendrowiak’s

preventive detention beyond a period of ten years because they considered that there

was still a risk that he might commit serious sexual offences, in particular rape, if

released. They had thus acted in order to protect potential victims from harm amounting

to inhuman or degrading treatment under Article 3 of the Convention.

While the Convention indeed obliged States to take reasonable steps within the scope of

their powers to prevent ill-treatment of which they had or ought to have had knowledge,

it did not permit a State to protect individuals from criminal acts of a person by

measures which were itself in breach of that person’s Convention rights. The scope of

any obligation to take preventive measures thus had to ensure that the authorities

exercised their powers to prevent crime in a manner which fully respected, in particular,

the guarantees contained in Article 5.

Consequently, the State authorities had not, in Mr Jendrowiak’s case, been in a position

to rely on their positive obligations under the Convention in order to justify his

deprivation of liberty, which did not fall within the permissible grounds for a deprivation

of liberty under Article 5 § 1. There had accordingly been a violation of Article 5 § 1.

Article 7 § 1

As regards the complaint under Article 7 § 1, the Court equally referred to its findings in

M. v. Germany. In that judgment, the Court had concluded that preventive detention

was to be qualified as a penalty for the purpose of Article 7 § 1. Like a prison sentence,

preventive detention entailed a deprivation of liberty. Following the amendment of the

German Criminal Code in 1998, preventive detention no longer had a maximum

duration. Given that at the time of his offence Mr Jendrowiak could have been kept in

preventive detention only for a maximum of ten years, the extension constituted a

heavier penalty which had been imposed on him retrospectively.

As regards the State’s positive obligation to protect potential victims from inhuman or

degrading treatment which might be caused by Mr Jendrowiak, the Court’s findings

under Article 5 applied with even stronger reason to the prohibition of retrospective

penalties under Article 7 § 1, from which no derogation was allowed even in time of

public emergency. There had accordingly been a violation of Article 7 § 1.

Article 41

Under Article 41 (just satisfaction) of the Convention, the Court held that Germany was

to pay the applicant 27,467 euros (EUR) in respect of non-pecuniary damage and EUR

4,000 in respect of costs and expenses.

The judgment is available only in English.

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