PROCEDURE

The case originated in an application (no. 30493/04) 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 Paul H. Schmitz (“the applicant”), on 19 August 2004.

The applicant was represented by Ms M. Bürger-Frings, a lawyer practising in Aachen. 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 that his preventive detention of an indefinite duration violated his right to liberty under 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 a 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 1959 and is currently detained in Aachen Prison.

A. The applicant’s previous convictions and the orders for his preventive detention and execution thereof

Between 1974 and 1990 the applicant was convicted of sexual offences including attempted rape, sexual abuse of children, sexual assault, attempted sexual assault and dangerous assault in six judgments and spent some eleven years in prison.

On 14 February 1990 the Cologne Regional Court convicted the applicant of two counts of sexual assault. It sentenced him to five years and six months’ imprisonment and ordered his (first) preventive detention under Article 66 § 1 of the Criminal Code (see paragraphs 20-21 below). It found that in June and July 1989 the applicant, acting with full criminal responsibility, had sexually assaulted two hitchhikers whom he had taken with him in his car. Having consulted a neurological expert, it further found that owing to his criminal tendencies, it was very likely that the applicant would commit further serious sexual offences comparable to those he was found guilty of on release and was dangerous to the public. Therefore, his preventive detention was necessary.

The applicant served his prison sentence until 17 January 1995 and was then held in preventive detention until 29 March 1995, when the preventive detention order was suspended on probation and the applicant released.

On 11 November 1996 the Cologne Regional Court convicted the applicant of attempted sexual assault and falsification of a driving licence. It sentenced him to four years and nine months’ imprisonment and ordered his (second) preventive detention under Article 66 § 1 of the Criminal Code. The Regional Court found that in August 1995 the applicant, acting with full criminal responsibility, had again attempted to sexually assault a hitchhiker. He had threatened her with a gas pistol, but she had succeeded in wresting the pistol from him and making good her escape. Having regard to the facts that the applicant had begun to reoffend almost immediately after spending some seventeen years in detention and that, according to the convincing view expressed by an expert, it would take many years to rehabilitate the applicant, if ever, the court further considered its second order of preventive detention to be proportionate.

On 20 June 1997 the Bonn Regional Court revoked the suspension on probation of the applicant’s first preventive detention, ordered in the Cologne Regional Court’s judgment of 14 February 1990, as the applicant had reoffended and had not diligently continued his therapy.

The applicant served his full prison sentence imposed in the judgment of 11 November 1996 until 25 May 2000. Since 26 May 2000 the applicant has been in preventive detention in Aachen Prison as ordered both in the judgment of the Cologne Regional Court of 14 February 1990 and in the judgment of that same court of 11 November 1996.

On 5 June 2002 the Aachen Regional Court, reviewing the applicant’s preventive detention, refused to suspend his preventive detention on probation.

B. The proceedings at issue

1. The decision of the Aachen Regional Court

On 11 June 2003 the applicant requested the Aachen Regional Court to order his release from preventive detention, arguing that preventive detention violated Article 5 § 1 of the Convention.

On 23 July 2003 the Aachen Regional Court, examining the applicant’s request under Article 458 § 1 of the Code of Criminal Procedure (see paragraph 24 below), decided that his objections against the admissibility of the execution of his preventive detention were ill-founded. The applicant’s preventive detention, ordered by the Cologne Regional Court in 1996 under Article 66 of the Criminal Code, constituted lawful detention after conviction by a competent court within the meaning of Article 5 § 1 (a) of the Convention.

2. The decision of the Cologne Court of Appeal

On 10 September 2003 the Cologne Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. It added that preventive detention under Article 66 of the Criminal Code, which was to be qualified as a measure of correction and prevention and not as a penalty, neither violated the Convention nor the Basic Law. Moreover, Article 67d § 3 of the Criminal Code, in its version in force since 31 January 1998 (see paragraph 23 below), was constitutional.

3. The decision of the Federal Constitutional Court

On 15 March 2004 the Federal Constitutional Court, 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), declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1838/03), in which he had complained that his preventive detention of an indefinite duration had violated Article 5 and Article 7 of the Convention.

C. Subsequent developments

On 19 July 2004, 19 July 2006 and 2 July 2008 the Aachen Regional Court, reviewing the applicant’s detention, refused to suspend the applicant’s preventive detention on probation. It considered that it could not be expected that the applicant, who refused to make a therapy with an external psychologist offered to him, would not reoffend on release.

The applicant was in his first preventive detention as ordered in the judgment of the Cologne Regional Court of 14 February 1990 until 15 March 2010. From 16 March 2010 onwards, the applicant’s preventive detention as ordered for the second time in the judgment of the Cologne Regional Court of 11 November 1996 is executed.

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 placement in 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.

Article 458 § 1 of the Code of Criminal Procedure provides that a court decision must be obtained if objections are raised to the execution of a sentence.

C. Relevant case-law of the Federal Constitutional Court

On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period (compare the provisions in paragraphs 22-23 above) and about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.

The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention because those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.

The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the most. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law. If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.

In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung). In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above).
NOT_CONFIDENTIAL
check
001-104905_a11_e1
001-104905_a11_em1
CODE
DIRECT
30493/04
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correct
001-104905_a11_e2
001-104905_a11_em2
ORG
NO_MASK
Federal Republic of Germany
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DEM
NO_MASK
German
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PERSON
DIRECT
Mr Paul H. Schmitz
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DATETIME
QUASI
19 August 2004
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001-104905_a11_em6
PERSON
QUASI
Ms M. Bürger-Frings
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001-104905_a11_em7
LOC
QUASI
Aachen
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001-104905_a11_em8
ORG
NO_MASK
001-104905_a11_em2
German Government
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001-104905_a11_e2
001-104905_a11_em9
ORG
NO_MASK
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Government
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PERSON
QUASI
Mrs A. Wittling-Vogel
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001-104905_a11_em11
PERSON
QUASI
Mr H.-J. Behrens
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ORG
NO_MASK
Federal Ministry of Justice
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DATETIME
QUASI
13 March 2007
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001-104905_a11_em14
ORG
NO_MASK
Chamber of the Fifth Section
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001-104905_a11_e13
001-104905_a11_em15
MISC
NO_MASK
M. v. Germany
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001-104905_a11_e14
001-104905_a11_em16
CODE
QUASI
19359/04
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001-104905_a11_e15
001-104905_a11_em17
DATETIME
QUASI
22 January 2009
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001-104905_a11_em18
ORG
NO_MASK
Government
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001-104905_a11_e13
001-104905_a11_em19
MISC
NO_MASK
M. v. Germany
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001-104905_a11_e16
001-104905_a11_em20
DATETIME
QUASI
17 December 2009
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001-104905_a11_e13
001-104905_a11_em21
MISC
NO_MASK
M. v. Germany
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001-104905_a11_e17
001-104905_a11_em22
DATETIME
QUASI
10 May 2010
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001-104905_a11_e18
001-104905_a11_em23
DATETIME
QUASI
20 May 2010
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001-104905_a11_e19
001-104905_a11_em24
DATETIME
QUASI
1959
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LOC
QUASI
Aachen Prison
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DATETIME
QUASI
Between 1974 and 1990
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001-104905_a11_e22
001-104905_a11_em27
MISC
QUASI
sexual abuse of children
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001-104905_a11_e23
001-104905_a11_em28
DATETIME
QUASI
some eleven years
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001-104905_a11_em29
DATETIME
QUASI
14 February 1990
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001-104905_a11_em30
ORG
QUASI
Cologne Regional Court
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001-104905_a11_em31
DATETIME
QUASI
five years and six months’
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001-104905_a11_em32
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QUASI
June
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001-104905_a11_em33
DATETIME
QUASI
July 1989
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001-104905_a11_e29
001-104905_a11_em34
MISC
QUASI
two hitchhikers whom he had taken with him in his car
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001-104905_a11_e30
001-104905_a11_em35
DATETIME
QUASI
17 January 1995
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001-104905_a11_em36
DATETIME
QUASI
29 March 1995
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001-104905_a11_e32
001-104905_a11_em37
DATETIME
QUASI
11 November 1996
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001-104905_a11_em38
ORG
QUASI
Cologne Regional Court
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001-104905_a11_e33
001-104905_a11_em39
DATETIME
QUASI
four years and nine months
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001-104905_a11_em40
ORG
NO_MASK
001-104905_a11_em30
Regional Court
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001-104905_a11_e34
001-104905_a11_em41
DATETIME
QUASI
August 1995
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001-104905_a11_e35
001-104905_a11_em42
MISC
QUASI
hitchhiker
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001-104905_a11_e36
001-104905_a11_em43
MISC
QUASI
gas pistol
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001-104905_a11_e36
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MISC
NO_MASK
001-104905_a11_em43
pistol
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001-104905_a11_e37
001-104905_a11_em45
DATETIME
QUASI
some seventeen years
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001-104905_a11_e38
001-104905_a11_em46
DATETIME
NO_MASK
many years
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001-104905_a11_e39
001-104905_a11_em47
DATETIME
QUASI
20 June 1997
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001-104905_a11_em48
ORG
QUASI
Bonn Regional Court
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001-104905_a11_em49
ORG
QUASI
Cologne Regional Court
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DATETIME
QUASI
14 February 1990
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DATETIME
QUASI
11 November 1996
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001-104905_a11_em52
DATETIME
QUASI
25 May 2000
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001-104905_a11_em53
DATETIME
QUASI
26 May 2000
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001-104905_a11_e20
001-104905_a11_em54
LOC
QUASI
Aachen Prison
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001-104905_a11_em55
ORG
QUASI
Cologne Regional Court
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001-104905_a11_em56
DATETIME
QUASI
14 February 1990
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001-104905_a11_em57
DATETIME
QUASI
11 November 1996
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DATETIME
QUASI
5 June 2002
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001-104905_a11_em59
ORG
QUASI
Aachen Regional Court
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001-104905_a11_em60
ORG
QUASI
Aachen Regional Court
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001-104905_a11_e45
001-104905_a11_em61
DATETIME
QUASI
11 June 2003
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001-104905_a11_e44
001-104905_a11_em62
ORG
QUASI
Aachen Regional Court
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001-104905_a11_e46
001-104905_a11_em63
DATETIME
QUASI
23 July 2003
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001-104905_a11_e44
001-104905_a11_em64
ORG
QUASI
Aachen Regional Court
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001-104905_a11_em65
ORG
QUASI
Cologne Regional Court
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001-104905_a11_e47
001-104905_a11_em66
DATETIME
NO_MASK
1996
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001-104905_a11_e48
001-104905_a11_em67
ORG
QUASI
Cologne Court of Appeal
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001-104905_a11_e49
001-104905_a11_em68
DATETIME
QUASI
10 September 2003
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001-104905_a11_e48
001-104905_a11_em69
ORG
QUASI
Cologne Court of Appeal
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001-104905_a11_e25
001-104905_a11_em70
ORG
NO_MASK
Regional Court
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001-104905_a11_em71
DATETIME
QUASI
31 January 1998
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001-104905_a11_em72
ORG
NO_MASK
Federal Constitutional Court
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001-104905_a11_em73
DATETIME
QUASI
15 March 2004
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001-104905_a11_em74
ORG
NO_MASK
Federal Constitutional Court
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001-104905_a11_em75
DATETIME
QUASI
5 February 2004
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001-104905_a11_em76
PERSON
NO_MASK
M.
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001-104905_a11_e55
001-104905_a11_em77
CODE
QUASI
2029/01
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001-104905_a11_e14
001-104905_a11_em78
CODE
QUASI
19359/04
NOT_CONFIDENTIAL
insert
001-104905_a11_e56
001-104905_a11_em79
CODE
DIRECT
1838/03
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001-104905_a11_e57
001-104905_a11_em80
DATETIME
QUASI
19 July 2004
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001-104905_a11_em81
DATETIME
QUASI
19 July 2006
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001-104905_a11_e59
001-104905_a11_em82
DATETIME
QUASI
2 July 2008
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001-104905_a11_e44
001-104905_a11_em83
ORG
QUASI
Aachen Regional Court
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001-104905_a11_e25
001-104905_a11_em84
ORG
QUASI
Cologne Regional Court
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001-104905_a11_e24
001-104905_a11_em85
DATETIME
QUASI
14 February 1990
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001-104905_a11_e60
001-104905_a11_em86
DATETIME
QUASI
15 March 2010
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001-104905_a11_e61
001-104905_a11_em87
DATETIME
QUASI
From 16 March 2010 onwards
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001-104905_a11_e25
001-104905_a11_em88
ORG
QUASI
Cologne Regional Court
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001-104905_a11_e32
001-104905_a11_em89
DATETIME
QUASI
11 November 1996
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001-104905_a11_e13
001-104905_a11_em90
MISC
NO_MASK
M. v. Germany
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001-104905_a11_e14
001-104905_a11_em91
CODE
QUASI
19359/04
NOT_CONFIDENTIAL
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001-104905_a11_e16
001-104905_a11_em92
DATETIME
QUASI
17 December 2009
NOT_CONFIDENTIAL
insert
001-104905_a11_e62
001-104905_a11_em93
DATETIME
NO_MASK
two years
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001-104905_a11_em94
DATETIME
NO_MASK
one year
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001-104905_a11_em95
DATETIME
NO_MASK
at least two years
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001-104905_a11_e50
001-104905_a11_em96
DATETIME
QUASI
31 January 1998
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001-104905_a11_e65
001-104905_a11_em97
DATETIME
NO_MASK
ten years
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001-104905_a11_e66
001-104905_a11_em98
DATETIME
QUASI
26 January 1998
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001-104905_a11_e50
001-104905_a11_em99
DATETIME
QUASI
31 January 1998
NOT_CONFIDENTIAL
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001-104905_a11_e65
001-104905_a11_em100
DATETIME
NO_MASK
ten years
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001-104905_a11_e51
001-104905_a11_em101
ORG
NO_MASK
Federal Constitutional Court
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001-104905_a11_e67
001-104905_a11_em102
DATETIME
QUASI
4 May 2011
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001-104905_a11_e51
001-104905_a11_em103
ORG
NO_MASK
Federal Constitutional Court
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001-104905_a11_e68
001-104905_a11_em104
DATETIME
NO_MASK
ten-year
NOT_CONFIDENTIAL
check
001-104905_a11_e69
001-104905_a11_em105
CODE
NO_MASK
2365/09
NOT_CONFIDENTIAL
insert
001-104905_a11_e70
001-104905_a11_em106
CODE
NO_MASK
740/10
NOT_CONFIDENTIAL
check
001-104905_a11_e71
001-104905_a11_em107
CODE
NO_MASK
2333/08
NOT_CONFIDENTIAL
check
001-104905_a11_e72
001-104905_a11_em108
CODE
NO_MASK
1152/10
NOT_CONFIDENTIAL
insert
001-104905_a11_e73
001-104905_a11_em109
CODE
NO_MASK
571/10
NOT_CONFIDENTIAL
check
001-104905_a11_e51
001-104905_a11_em110
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104905_a11_e51
001-104905_a11_em111
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104905_a11_e74
001-104905_a11_em112
DATETIME
QUASI
27 December 2003
NOT_CONFIDENTIAL
check
001-104905_a11_e51
001-104905_a11_em113
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104905_a11_e75
001-104905_a11_em114
DATETIME
QUASI
31 May 2013
NOT_CONFIDENTIAL
check
001-104905_a11_e51
001-104905_a11_em115
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104905_a11_e76
001-104905_a11_em116
DATETIME
QUASI
no later than 31 December 2011
NOT_CONFIDENTIAL
check
001-104905_a11_e51
001-104905_a11_em117
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104905_a11_e51
001-104905_a11_em118
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104905_a11_e13
001-104905_a11_em119
MISC
NO_MASK
M. v. Germany
Paul H. Schmitz
DEU
CHAMBER
Task: Annotate the document to anonymise the following person: Paul H. Schmitz