Komentarz (w j. angielskim) autorstwa Julii Beermann do wyroku ETPCz w sprawie M. przeciwko Niemcom. Wyrok dotyczył naruszenia gwarantowanego art. 5 Konwencji prawa do wolności i bezpieczeństwa osobistego oraz art. 7 - zakazu karania bez podstawy prawnej. 

One very complex issue in the decisions of the ECtHR is the question of implementation of the ECtHR’s judgments in the Member states. To face these issues I would like to present the case M. v. Germany1) and the implementation of the preventive detention judgment of the ECtHR by the German federal lawmaker. Firstly I will submit the facts of the case M. v. Germany. Secondly, talk about the present domestic law in Germany and the Courts findings. Lastly, I will describe how the Courts findings were implemented in German law.

Beginning with the facts the case is about M., a German citizen, who was born in 1957 and is now detained in Schwalmstadt Prison.  Since he had reached the age of criminal responsibility he has had a long history of previous convictions. He escaped from prison four times. In October 1977 the Kassel Regional Court convicted the applicant of murdering, robbery committed jointly with others, dangerous assault and blackmail and sentenced him to six years imprisonment. Relying on the report of a neurological and psychiatric expert, the court found that the applicant suffered from a pathological mental disorder, resulting that his criminal responsibility was diminished (Art. 21 of the Criminal Code). Some years later in 1981 the Marburg Regional Court upheld the order for the applicant’s placement in a psychiatric hospital because of his behaviour in prison. He had injured a prison guard and assaulted a disabled fellow prisoner. In these proceedings, an expert found that there were no longer any sings that the applicant suffered from pathological brain disorder. After he had murder a woman, who had volunteered to spend a day with him in a city away from the hospital, in July 1985, the Marburg Regional Court in November 1986 convicted him of attempted murder and robbery in preventive detention under Article 66 § 1 of the Criminal Code, the so-called Sicherheitsverwahrung, relying to a new report of an expert, who found that the applicant had a strong tendency to commit offences which seriously harmed his victims’ physical integrity, that it was likely he would commit further acts of violence and that he was therefore dangerous to the public. The Court found that the applicant still suffered from a serious mental disorder, which could, however, no longer be qualified as pathological and did not have to be treated medically. Therefore, they said, he had not acted with diminished criminal responsibility and the preconditions for the decision to place him in a psychiatric hospital under Article 63 of the Criminal Code were no longer met.

After having served his full prison sentence, the applicant's repeated requests between 1992 and 1998 for a suspension on probation of his preventive detention were dismissed by two regional courts, respectively relying on an expert report and taking into consideration the applicant's violent and aggressive conduct in prison. In April 2001 the Marburg Regional Court again refused to suspend on probation the applicant's preventive detention and ordered its extension beyond September 2001, when he would have served ten years in this form of detention. This decision was upheld by the Frankfurt am Main Court of Appeal in October 2001, finding, as had the lower court, that the applicant's dangerousness necessitated his continued detention.

To understand the decision of the German Courts, one have to look into the German Domestic law. The German Criminal Code is based on two types: The penalties and the so- called measures of correction and prevention to deal with unlawful acts. The penalties are fixed according to the defendant’s guilt (Article 46 § 1 of the Criminal Code), but the measures of correction and prevention consists mainly of placements in psychiatric hospitals, a detoxification facility or in preventive detention (Article 62, 64 and 66 of the Criminal Code), because the measures should rehabilitate dangerous offenders or protect the public from them. Of course they must be balanced to the gravity of the offences committed by the defendants and to their dangerousness. In particular if there is any danger for the public, the court may order preventive detention under certain circumstances. Since 1975 there were limiting preventive detention orders to a maximum of ten years following a served prison term2).  But in January 1998 a new legislation lifted the ten- year limit on preventive detention and also lowered the requirements for the imposition of preventive detention on physically aggressive and sexual offenders. This meant that it was now possible for German courts to order indefinite detention.

In November 2001 M claimed before the Bundesverfassungsgericht (BVerfG), that the court decisions dismissing his requests for a suspension of his preventive detention were based on Article 67d (3) of the Criminal Code, as amended in 1998, under the terms of which the duration of an offender’s first period of preventive detention could be extended retrospectively from a maximum period of ten years to an unlimited period of time. This, as he argued, violated the prohibition of retrospective punishment under Article 103 (2) of the Basic Law. The BVerfG, however, dismissed the applicant’s complaint. The Court held that preventive detention based on Article 67d(3) of the Criminal Code restricted the right to liberty as protected by Article 2(2) of the Basic Law in a proportionate manner. It stressed that the longer a person was held in preventive detention, the stricter the requirements concerning the proportionality of the deprivation of liberty became. Finally the BVerfG held that criminals who had been placed in preventive detention prior to its enactment in 1998 and who had not yet fully served their sentences were in conformity with the protection of legitimate expectations guaranteed in a State governed by the rule of law.

The case was subsequently taken to Strasbourg to the ECtHR. The applicant complained under Article 5 § 1 of the Convention that his continued preventive detention violated his right to liberty. In particular he alleged that there was not a sufficient causal connection between his conviction in 1986 and his continued detention after the completion of ten years in preventive detention. He further complained under Article 7 §1 of the Convention that the retrospective extension of his detention from a maximum of ten years to an unlimited period of time violated his right not to have a heavier penalty imposed on him than the one applicable at the time of his offence.

The ECtHR first confirmed that the applicant’s preventive detention before expiry of the ten- year- period was covered by Article 5 § 1 (a) as being detention after conviction by the sentencing court. As regards his preventive detention beyond the ten- year period, however, the Court found that there was no causal connection between his conviction and his continued deprivation of liberty. The decision of the sentencing court meant only that he could be kept for a clearly defined maximum period. Moreover the Court found that the applicant’s continued detention had not been justified by the risk that he could commit further serious offences. Furthermore, the applicant could not be kept as a person of unsound mind within the meaning of Article 5 § 1 (e).  The Court therefore concluded that the applicant’s detention beyond the ten- year period amounted to a violation of Article 5 §1.
To answer the question of a violation of Article 7 § 1 the Court first determined whether preventive detention was to be qualified as a penalty for the purposes of Article 7 § 1 and came to the conclusion that it does, because both forms of detention served the aim of protecting the public and to help the detainee to become capable of leading a responsible life outside the prison. The Court further remarked, agreeing with the findings of the Council of Europe's Commissioner for Human Rights and the European Committee for the Prevention of Torture about preventive detention in Germany, that there was at that moment no sufficient psychological support specifically aimed at prisoners in preventive detention that would distinguish their condition of detention from that of ordinary long-term prisoners. The Court was not convinced by the German Government’s argument that the extension of the applicant’s detention concerned the execution of the penalty imposed on the applicant by the sentencing court. At the time of the offence the applicant could have been kept in preventive detention only for a maximum of ten years. So the extension constituted an additional penalty which had been imposed on the applicant retrospectively. Therefor the Court concluded that there had been a violation of Article 7 § 1 and because of Article 41 the Court awarded the applicant 50,000 euros in respect of non – pecuniary damage.

Because of the ECtHR decision the BVerfG had to deal with the practice of preventive detention since the ECtHR had found it to be in violation of the ECHR. The ECHR ranks below the Basic Law in the hierarchy of norms of the German constitutional order and so the BVerfG said that the provisions of the Basic Law had to be interpreted in a manner that was compatible with international law.  The BVerfG then found that all provisions of the German Criminal Code on the imposition of preventive detention were incompatible with the fundamental right to liberty as protected by Article 2 (2) and Article 104 (1) of the Basic Law. He confirmed that there must be a liberty- oriented overall concept of preventive detention that had a clear therapeutic orientation towards the objective of minimising the danger emanating from the detainee. The BVerfG did not declare the unconstitutional provisions void but ordered their continued applicability till the first of June 2013 at the latest3).

Julia Beeermann

1) M. v. Germany

2)   “From Strasbourg, with Love – Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights”, Christopher Michaelsen, in: Human Right Law Review, 2012.
3) BvR 2365/09, 4 May 2011, available at: http://www.bverfg.de/entscheidungen/
rs20110504_2bvr236509.html, last seen 25/05/2013