issued by the Registrar of the Court

ECHR 256 (2011)

24.11.2011

Preventive detention without a court ordering its execution was

not justified

In today’s Chamber judgment in the case Schönbrod v. Germany (application

no. 48038/06), 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.

The case concerned the applicant’s preventive detention after having served his prison

sentences in full.

Principal facts

The applicant, Jakob Schönbrod, is a German national who was born in 1933, has been

convicted numerous times and has spent many years of his life in prison. In May 1996,

he was convicted by the Koblenz Regional Court of armed robbery committed with others

and sentenced to ten years’ imprisonment. An order for preventive detention issued by

the court at the same time was subsequently revoked in view of the fact that his

preventive detention had been ordered by a previous judgment in 1978.

After having served his prison sentence in full on 7 June 2005, Mr Schönbrod was kept in

preventive detention in Aachen prison. By that time, the Aachen Regional Court, while

having started the relevant proceedings, had not yet taken a decision as to whether the

preventive detention order against him should be executed. Only on 30 March 2006 did

the court order the execution of the preventive detention order made in 1978. Based on

an interview with Mr Schönbrod, his counsel and the prison director, as well as two

expert opinions, the court held that despite his advanced age of 72 Mr Schönbrod was

likely to commit further serious offences if released. His appeal against that decision was

dismissed and, on 21 September 2006, the Federal Constitutional Court declined to

consider his constitutional complaint (file no. 2 BvR 1614/06). In December 2007, the

Aachen Regional Court decided to suspend the preventive detention order, and in March

2008 he was released.

Complaints, procedure and composition of the Court

Mr Schönbrod complained that his preventive detention had violated Article 5 § 1 (right

to liberty and security), among other things because, given his advanced age, he was no

longer dangerous to the public.

The application was lodged with the European Court of Human Rights on 11 November

2006.

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

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

Dean Spielmann (Luxembourg), President,

Elisabet Fura (Sweden),

Karel Jungwiert (the Czech Republic),

Boštjan M. Zupančič (Slovenia),

Mark Villiger (Liechtenstein),

Ganna Yudkivska (Ukraine),

Angelika Nußberger (Germany), Judges,

and also Claudia Westerdiek, Section Registrar.

Decision of the Court

Article 5 § 1

The Court was satisfied that, as regards the grounds for Mr Schönbrod’s preventive

detention, it had been covered by Article 5 § 1 (a) as detention “after conviction”. He

had not been detained beyond the maximum period permissible at the time of his

offence and conviction. The decision not to release him by the domestic court

responsible for the execution of sentences had been consistent with the objectives of the

judgment of the sentencing court, in that both had been aimed at preventing him from

committing further offences such as armed robberies. As regards his age and state of

health, Mr Schönbrod had failed to show that the expert reports, on which the domestic

court’s decision had been based and which had found that he was still capable of

committing serious offences, were insufficiently reasoned.

However, the Court noted that Mr Schönbrod had been detained for more than nine

months after having fully served his prison sentence without a court order, because no

decision had yet been taken as to whether his preventive detention was necessary. The

Court was prepared to accept that that situation had been in accordance with national

law, having regard to the domestic courts’ reasoning, according to which it had been

sufficient that the court dealing with the execution of sentences had begun to examine

that question. Nevertheless, the Court underlined that under its case-law the speed with

which the courts issued a new detention order after the expiry of a previous one was one

of the relevant elements in assessing whether a person’s detention, despite its

compliance with domestic law, had to be considered arbitrary. Nothing indicated that Mr

Schönbrod had in any way contributed to the delays in the procedure, which led to him

being detained without a court order for a considerable time. Those delays had rather

been caused by the domestic court and prosecutor’s office. In view of those

considerations, the Court concluded that Mr Schönbrod’s detention between the end of

his prison sentence in June 2005 and the preventive detention order of March 2006 had

to be considered arbitrary, in violation of Article 5 § 1.

Article 41

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

to pay Mr Schönbrod 5,000 euros (EUR) in respect of non-pecuniary damage and EUR

1,015.96 in respect of costs and expenses.

The judgment is available only in English.

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