PROCEDURE

The case originated in two applications (nos. 31047/04 and 43386/08) 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 Hermann Walter Mork (“the applicant”), on 18 August 2004 and 3 September 2008 respectively.

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, in particular, that the execution of his preventive detention violated his right to liberty under Article 5 § 1 of the Convention.

On 13 March 2007 a Chamber of the Fifth Section decided to adjourn the examination of application no. 31047/04 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 applications no. 31047/04 and no. 43386/08 to the Government, requested them to submit information on changes in the applicant’s detention regime and adjourned the examination of the applications until the 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 applications 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 applications at issue be resumed and granted priority to the applications (Rule 41 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1955 and is currently detained in Aachen Prison.

A. Background to the case

Between 1978 and 1981 the applicant was convicted, among other offences, of numerous counts of joint burglary committed in companies and shops and was imprisoned from March 1980 until February 1985.

In 1986 the Dortmund Regional Court convicted the applicant of trafficking in drugs (hashish and cocaine) and sentenced him to eight years’ imprisonment. The applicant was in pre-trial detention and served his sentence from August 1985 until June 1993.

In December 1996 the applicant was arrested and placed in pre-trial detention on suspicion of drug trafficking; he has remained in prison since then.

B. The proceedings before the sentencing courts (application no. 31047/04)

1. The proceedings before the Regional Court and the Federal Court of Justice

In a judgment dated 9 February 1998 the Aachen Regional Court convicted the applicant of unauthorised importing of drugs and of drug trafficking committed in 1996 and involving some 280 kilos of hashish. It sentenced him to eight years and six months’ imprisonment. It decided not to order the applicant’s preventive detention under Article 66 of the Criminal Code (see paragraphs 22-23 below) as it was not convinced that the applicant was dangerous to the public owing to a disposition to commit serious offences. In this assessment, the court took into consideration that the applicant had not attempted to avert his punishment by lodging numerous procedural motions and had agreed to the forfeiture of money stemming from drug trafficking. The applicant claimed that he had struck a deal with the Regional Court on the latter’s proposal that the court would impose a sentence of less than ten years and would not order his preventive detention if he ceased to contest the court’s finding of fact. The Government submitted that there was no indication in the case-file that such an agreement had been made.

In a judgment dated 7 April 1999 the Federal Court of Justice dismissed an appeal by the applicant on points of law. It allowed an appeal by the prosecution regarding the Regional Court’s decision not to order the applicant’s preventive detention and quashed the judgment in this respect as the Regional Court had not given valid reasons for considering the applicant not to be dangerous to the public.

In a judgment dated 14 November 2001 a different chamber of the Aachen Regional Court ordered the applicant’s (first) indefinite preventive detention pursuant to Article 66 § 1 of the Criminal Code. Having consulted a psychiatric expert and having regard to the applicant’s personality and his previous convictions, the court considered that the applicant had a disposition to commit serious offences, was likely to commit further serious drug offences and was thus dangerous to the public.

In a decision dated 31 May 2002 the Federal Court of Justice dismissed as ill-founded an appeal by the applicant on points of law, in which the latter had complained that provisions of substantive law had not been complied with (allgemeine Sachrüge).

2. The proceedings before the Federal Constitutional Court

On 24 June 2002 the applicant, without being represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the two judgments of the Regional Court and the judgment and the decision of the Federal Court of Justice. He complained, in particular, that preventive detention was incompatible with his right to liberty under Article 5 § 1 of the Convention, which did not cover such a preventive measure. It further violated the prohibition of retrospective punishment under the Basic Law and Article 7 of the Convention because it was incompatible with the principle of legal certainty and because his preventive detention had been ordered without a maximum duration of ten years, which had been the maximum penalty at the time he committed his offences. Furthermore, his right to a fair trial had been breached in that the domestic courts had not subsequently respected the deal struck with the Regional Court that he would not further contest the court’s finding of facts in exchange for the court not ordering his preventive detention.

On 11 March 2004 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1046/02). The Federal Constitutional Court found that in so far as the applicant complained about the judgment of the Regional Court of 9 February 1998 and that of the Federal Court of Justice of 7 April 1999, he had lodged his constitutional complaint out of time. In so far as the applicant complained that the Regional Court’s order for his preventive detention in its judgment of 14 November 2001 lacked a valid legal basis and was arbitrary, his complaint was inadmissible for non-exhaustion of domestic remedies. The court found that the applicant had failed to submit his statement of the grounds of his appeal on points of law nor had he claimed before it that he had complained about the unconstitutionality of the amended provisions on preventive detention and about their application by the Regional Court to him before the Federal Court of Justice, at least by complaining that provisions of substantive law had not been complied with.

C. The proceedings before the courts dealing with the execution of sentences (application no. 43386/08)

1. The proceedings before the Regional Court

On 13 July 2007 the Bochum Regional Court, acting as the court dealing with the execution of sentences, having heard the applicant in person, ordered the applicant’s placement in preventive detention as of 25 July 2007 (Article 67c § 1 of the Criminal Code; see paragraph 24 below), that is, as from the day on which the applicant would have served his full prison sentence. The court fully agreed with the findings of a psychiatric and psychotherapeutic expert it had consulted on the applicant’s dangerousness. In his report dated 7 May 2007 the expert, having examined the applicant, had considered that, if released, the applicant was very likely to commit further serious offences similar to those he had previously committed. He was still dangerous to the public as he had to date failed to reflect sufficiently on his numerous offences. Even assuming that the security measures taken against him by the prison authorities had not been justified, this did not alter the fact that there had not been a consistent treatment limiting the risk that he would reoffend after his release.

2. The proceedings before the Court of Appeal

On 6 September 2007 the Hamm Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal.

On 24 January 2008 the Hamm Court of Appeal rejected an objection (Gegenvorstellung) by the applicant.

3. The proceedings before the Federal Constitutional Court

On 17 October 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the Regional Court’s decision of 13 July 2007 and the Court of Appeal’s decision of 6 September 2007. By submissions dated 3 March 2008 he extended his complaint to the Hamm Court of Appeal’s decision of 24 January 2008. He claimed, in particular, that the order to place him in preventive detention disproportionately interfered with his right to liberty. He argued that the expert report on which the courts dealing with the execution of sentences had relied had not been drawn up in due form, that the courts had failed to give convincing reasons, in view of his mostly less serious previous convictions, why he was likely to commit further serious offences if released and that he had been refused relaxations in the conditions of his detention without convincing reasons.

On 14 July 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2356/07). It found, in particular, that the decisions of the courts dealing with the execution of sentences to order the applicant’s placement in preventive detention had not violated the applicant’s right to liberty. The Federal Constitutional Court found that the Regional Court’s assessment that the applicant had repeatedly committed serious offences was not arbitrary as the latter had been sentenced to one term of eight years’ imprisonment and another of eight years and six months. The expert report, which was of recent date, was sufficiently substantiated. In so far as the applicant had been refused relaxations in the conditions of his detention, the Constitutional Court noted that the courts dealing with the execution of sentences had not based their decision to order preventive detention globally on the fact that the applicant had failed to prove that he was no longer dangerous in the course of such relaxations. If the prison authorities refused to grant the applicant relaxations in the conditions of his detention in the future, the applicant had to raise this issue with the competent lower courts first. In view of the courts’ assessment that the applicant was likely to commit further serious offences if released, their finding that the interest in public safety prevailed over the applicant’s right to liberty had been proportionate.

D. Subsequent developments

On 12 August 2009 the Aachen Regional Court, acting as the court dealing with the execution of sentences, refused to suspend the execution of the preventive detention order against the applicant on probation. That decision was confirmed on appeal.

II. RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE

A. Provisions concerning preventive detention

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:

1. 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).

2. The duration of preventive detention

Article 67c § 1 of the Criminal Code provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person’s conduct commences with suspension.

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.

B. Relevant case-law of the Federal Constitutional Court

1. Case-law on lodging a constitutional complaint

Under the well-established case-law of the Federal Constitutional Court, a complainant is obliged to submit to that court, within the one‑month time-limit running from the notification of the impugned court decision, either a copy of the impugned decisions and of all documents necessary for their understanding or at least to set out their content in a manner allowing for a control of their constitutionality (see, inter alia, the decisions of the Federal Constitutional Court of 16 December 1992, file no. 1 BvR 167/87, Collection of the decisions of the Federal Constitutional Court (BVerfGE), vol. 88 (1993), pp. 40 ss., 45; of 10 October 1995, file nos. 1 BvR 1476, 1980/91 and 102, 221/92, Collection of the decisions of the Federal Constitutional Court, vol. 93 (1996), pp. 266 ss., 288; confirmed, for instance, by a decision of 18 March 2009, file no. 2 BvR 1350/08). No distinction was made in these decisions between complainants who were and those who were not represented by counsel.

2. Recent case-law on preventive detention

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 25-26 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).
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check
001-104907_a11_e55
001-104907_a11_em88
DATETIME
QUASI
17 October 2007
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em89
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e32
001-104907_a11_em90
ORG
NO_MASK
Regional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e48
001-104907_a11_em91
DATETIME
QUASI
13 July 2007
NOT_CONFIDENTIAL
check
001-104907_a11_e52
001-104907_a11_em92
DATETIME
QUASI
6 September 2007
NOT_CONFIDENTIAL
check
001-104907_a11_e56
001-104907_a11_em93
DATETIME
QUASI
3 March 2008
NOT_CONFIDENTIAL
check
001-104907_a11_e53
001-104907_a11_em94
ORG
QUASI
Hamm Court of Appeal
NOT_CONFIDENTIAL
check
001-104907_a11_e54
001-104907_a11_em95
DATETIME
QUASI
24 January 2008
NOT_CONFIDENTIAL
check
001-104907_a11_e57
001-104907_a11_em96
DATETIME
QUASI
14 July 2008
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em97
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e58
001-104907_a11_em98
CODE
DIRECT
2356/07
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em99
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e32
001-104907_a11_em100
ORG
NO_MASK
Regional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e28
001-104907_a11_em101
DATETIME
NO_MASK
eight years
NOT_CONFIDENTIAL
check
001-104907_a11_e28
001-104907_a11_em102
DATETIME
NO_MASK
eight years
NOT_CONFIDENTIAL
check
001-104907_a11_e38
001-104907_a11_em103
DATETIME
NO_MASK
six months
NOT_CONFIDENTIAL
check
001-104907_a11_e59
001-104907_a11_em104
ORG
NO_MASK
Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e60
001-104907_a11_em105
DATETIME
QUASI
12 August 2009
NOT_CONFIDENTIAL
check
001-104907_a11_e35
001-104907_a11_em106
ORG
QUASI
Aachen Regional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e15
001-104907_a11_em107
MISC
NO_MASK
M. v. Germany
NOT_CONFIDENTIAL
check
001-104907_a11_e16
001-104907_a11_em108
CODE
NO_MASK
19359/04
NOT_CONFIDENTIAL
check
001-104907_a11_e18
001-104907_a11_em109
DATETIME
QUASI
17 December 2009
NOT_CONFIDENTIAL
insert
001-104907_a11_e61
001-104907_a11_em110
DATETIME
NO_MASK
at least two years
NOT_CONFIDENTIAL
insert
001-104907_a11_e62
001-104907_a11_em111
DATETIME
NO_MASK
one year
NOT_CONFIDENTIAL
check
001-104907_a11_e61
001-104907_a11_em112
DATETIME
NO_MASK
at least two years
NOT_CONFIDENTIAL
check
001-104907_a11_e63
001-104907_a11_em113
ORG
NO_MASK
Chamber of the Regional Court
NOT_CONFIDENTIAL
correct
001-104907_a11_e64
001-104907_a11_em114
MISC
NO_MASK
Court Organisation Act
NOT_CONFIDENTIAL
insert
001-104907_a11_e65
001-104907_a11_em115
DATETIME
QUASI
31 January 1998
NOT_CONFIDENTIAL
check
001-104907_a11_e45
001-104907_a11_em116
DATETIME
NO_MASK
ten years
NOT_CONFIDENTIAL
correct
001-104907_a11_e66
001-104907_a11_em117
MISC
NO_MASK
Combating of Sexual Offences and Other Dangerous Offences Act
NOT_CONFIDENTIAL
check
001-104907_a11_e67
001-104907_a11_em118
DATETIME
QUASI
26 January 1998
NOT_CONFIDENTIAL
check
001-104907_a11_e65
001-104907_a11_em119
DATETIME
QUASI
31 January 1998
NOT_CONFIDENTIAL
check
001-104907_a11_e45
001-104907_a11_em120
DATETIME
NO_MASK
ten years
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em121
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em122
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em123
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e68
001-104907_a11_em124
DATETIME
QUASI
16 December 1992
NOT_CONFIDENTIAL
insert
001-104907_a11_e69
001-104907_a11_em125
CODE
NO_MASK
167/87
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em126
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e70
001-104907_a11_em127
DATETIME
QUASI
10 October 1995
NOT_CONFIDENTIAL
insert
001-104907_a11_e71
001-104907_a11_em128
CODE
NO_MASK
1476
NOT_CONFIDENTIAL
insert
001-104907_a11_e72
001-104907_a11_em129
CODE
NO_MASK
1980/91
NOT_CONFIDENTIAL
check
001-104907_a11_e73
001-104907_a11_em130
CODE
NO_MASK
221/92
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em131
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e36
001-104907_a11_em132
DATETIME
NO_MASK
1996
NOT_CONFIDENTIAL
check
001-104907_a11_e74
001-104907_a11_em133
DATETIME
QUASI
18 March 2009
NOT_CONFIDENTIAL
check
001-104907_a11_e75
001-104907_a11_em134
CODE
NO_MASK
1350/08
NOT_CONFIDENTIAL
check
001-104907_a11_e76
001-104907_a11_em135
DATETIME
QUASI
4 May 2011
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em136
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e77
001-104907_a11_em137
DATETIME
NO_MASK
ten-year
NOT_CONFIDENTIAL
check
001-104907_a11_e78
001-104907_a11_em138
CODE
NO_MASK
2365/09
NOT_CONFIDENTIAL
insert
001-104907_a11_e79
001-104907_a11_em139
CODE
NO_MASK
740/10
NOT_CONFIDENTIAL
check
001-104907_a11_e80
001-104907_a11_em140
CODE
NO_MASK
2333/08
NOT_CONFIDENTIAL
check
001-104907_a11_e81
001-104907_a11_em141
CODE
NO_MASK
1152/10
NOT_CONFIDENTIAL
insert
001-104907_a11_e82
001-104907_a11_em142
CODE
NO_MASK
571/10
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em143
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em144
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e83
001-104907_a11_em145
DATETIME
QUASI
27 December 2003
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em146
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e84
001-104907_a11_em147
DATETIME
QUASI
31 May 2013
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em148
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e85
001-104907_a11_em149
DATETIME
QUASI
no later than 31 December 2011
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em150
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e43
001-104907_a11_em151
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-104907_a11_e15
001-104907_a11_em152
MISC
NO_MASK
M. v. Germany
Hermann Walter Mork
DEU
CHAMBER
Task: Annotate the document to anonymise the following person: Hermann Walter Mork