issued by the Registrar of the Court

ECHR 241 (2012)

07.06.2012

Two prisoners should not have been placed in preventive

detention retrospectively

In today’s Chamber judgments in the cases K v. Germany (application no. 61827/09)

and G v. Germany (no. 65210/09), which are not final¹, the European Court of Human

Rights held, unanimously, that there had been:

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

Convention on Human Rights in both cases.

The cases concerned the applicants’ placement in preventive detention, which had been

ordered retrospectively, based on a legal provision introduced years after their

conviction.

The Court confirmed its findings in previous cases that preventive detention was to be

qualified as a “penalty” for the purposes of the Convention. It held in particular that by

ordering the applicants’ preventive detention retrospectively the German courts had

imposed a heavier penalty on them than that applicable at the time of their respective

offences.

Principal facts

The applicants in both cases are German nationals who were born in 1957 and 1968

respectively. Mr K is currently detained in Schwalmstadt Prison and Mr G is detained in

Straubing Prison. Mr K was convicted of several counts of rape and sentenced to eight

and a half years’ imprisonment in 1987. Mr G was convicted of three counts of murder

and sentenced to 15 years’ imprisonment in 1992.

In both cases, in addition to their respective prison sentence, the sentencing courts

ordered the applicants’ placement in a psychiatric hospital, where they were detained

subsequent to serving their full prison sentence. Their stay there was terminated by the

regional courts dealing with the execution of sentences in 2007, holding that the

applicants did not suffer from

a condition diminishing their respective criminal

responsibility. Both applicants were subsequently placed in preventive detention, ordered

by the Frankfurt regional court in March (Mr G) and April (Mr K) 2008 on the basis of

Article 66b § 3 of the Criminal Code. That provision had been inserted into the Criminal

Code in 2004 and allowed for the possibility to impose preventive detention

retrospectively. In both cases, the regional court found that

a comprehensive

assessment of the applicants, their offences and their development during the placement

in the psychiatric hospital revealed that it was very likely that, if released, they would

commit serious offences again resulting in considerable psychological or physical harm to

the victims.

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

The Federal Court of Justice dismissed both applicants’ appeals. On 5 August 2009, the

Federal Constitutional Court declined to consider the applicants’ constitutional complaints

against the retrospective orders for their preventive detention (file nos. 2 BvR 2633/08

and 2 BvR 2098/08). It found in particular that Article 66b § 3 of the Criminal Code and

the lower courts’ decision to order the applicants’ placement in preventive detention

were compatible with the Basic Law.

The applicants subsequently brought proceedings to review their preventive detention;

both applicants are currently still in preventive detention.

Complaints, procedure and composition of the Court

Relying in particular on Article 7 § 1, the applicants complained of the retrospective

order for and execution of their preventive detention.

Mr K’s application was lodged with the European Court of Human Rights on 16 November

2009 and Mr G’s application was lodged on 9 December 2009.

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),

Ann Power-Forde (Ireland),

Angelika Nußberger (Germany),

André Potocki (France), Judges,

and also Stephen Phillips, Deputy Section Registrar.

Decision of the Court

Article 7 § 1

The Court referred to its conclusions in a previous case, M. v. Germany², in which it had

found that preventive detention under German criminal law was to be qualified as a

penalty for the purpose of Article 7 § 1, having regard to the fact that it was ordered by

the criminal courts following a conviction for a criminal offence and that it entailed a

deprivation of liberty of indefinite duration. It saw no reason to depart from that finding.

The Court was not convinced that the conditions of the applicants’ preventive detention

in Schwalmstadt Prison, where Mr K remained detained and where Mr G had been

detained prior to his transfer to another prison, had differed substantially from the

situation of the applicant in the case of M. v. Germany, whose preventive detention had,

moreover, been executed in that same prison. Minor alterations in the detention regime

could not mask the fact that that there had been no substantial difference between the

execution of the prison sentence and that of the preventive detention order. In a leading

judgment of 4 May 2011, the German Federal Constitutional Court had moreover found

it unconstitutional that there was not a sufficient difference between preventive

detention and detention for serving a term of imprisonment under German criminal law.

The Court agreed with the applicants’ argument that the retrospective order for their

preventive detention constituted a new, additional penalty, and thus a heavier penalty

M. v. Germany (19359/04) of 17 December 2009

within the meaning of Article 7 § 1. At the time of their offences, committed in 1985 and

1986 in the case of Mr K and between 1988 and 1990 in the case of Mr G, it had not

been possible to place the applicants in preventive detention by retrospective order. The

provision on which their preventive detention was based had only been inserted into the

German Criminal Code in 2004, thus many years after their offences.

In both cases, the sentencing court had expressly declined to order the applicants’

preventive detention in addition to their placement in a psychiatric hospital. Those

judgments could therefore not be said to have covered their subsequent placement in

preventive detention. Moreover, under the established case-law of the German courts

prior to the change in criminal law in 2004, a person could no longer be detained in a

psychiatric hospital and had to be released if he no longer suffered from a condition

excluding or diminishing his criminal responsibility.

Finally, the Court did not agree with the German Government’s argument that by

ordering the applicants’ release they would have breached their obligations under Article

2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment) of the

Convention to protect potential victims from murder or violent sexual offences likely to

be committed by the applicants. The Court underlined that the Convention neither

obliged nor authorised State authorities to protect individuals from criminal acts of a

person by measures which were in breach of that person’s right under Article 7 § 1.

There had accordingly been a violation of Article 7 § 1 in both cases.

Article 41

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

to pay Mr K 7,000 euros (EUR) in respect of non-pecuniary damage. It was to pay Mr G

EUR 5,000 in respect of non-pecuniary damage and EUR 7,140 in respect of costs and

expenses.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of

Europe Member States in 1959 to deal with alleged violations of the 1950 European

Convention on Human Rights.