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O.H. v. GERMANY - 4646/08 [2011] ECHR 1975 (24 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1975.html
Cite as:
[2011] ECHR 1975,
(2012) 54 EHRR 29,
54 EHRR 29
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FIFTH
SECTION
CASE OF
O.H. v. GERMANY
(Application
no. 4646/08)
JUDGMENT
STRASBOURG
24
November 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of O.H. v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann, President,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4646/08) 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 O.H.
(“the applicant”), on 20 January 2008. The President
of the Chamber acceded to the applicant’s request not to have
his name disclosed (Rule 47 § 3 of the Rules of Court).
The
applicant, who had been granted legal aid, was represented by Mr A.
Ahmed, a lawyer practising in Munich. 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 the retrospective extension of his first
preventive detention from a period of ten years, which had been the
maximum for such detention under the legal provisions applicable at
the time of his offence, to an unlimited period of time violated his
Convention rights as he continued to be deprived of his liberty.
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 alterations to the applicant’s detention regime
and adjourned the examination of the application until the judgment
in the case of M. v. Germany (no. 19359/04, 17
December 2009) had 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
present application be resumed and granted it priority (Rule 41 of
the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952 and is currently in Straubing Prison.
A. The applicant’s previous convictions and the
order for his preventive detention and execution thereof
1. The applicant’s previous convictions and the
preventive detention order against him
Between
1970 and 1987 the applicant was convicted in eight judgments of
offences including theft, robbery, extortion, assault and dangerous
assault and spent some fourteen years in prison.
On
9 April 1987 the Munich I Regional Court convicted the applicant of
two counts of attempted murder. It sentenced him to nine years’
imprisonment and ordered his preventive detention (Article 66 §
1 of the Criminal Code, see paragraphs 41-42 below).
The
Regional Court found that in 1986 the applicant and an accomplice had
shot at two policemen several times in order to escape arrest and
criminal prosecution following the discovery of their plans to carry
out an armed bank robbery using a stolen car. A psychological expert
and a neurological expert consulted by the court, who had both
examined the applicant in person, confirmed that the applicant was
suffering from a personality disorder characterised, in particular,
by antisocial conduct, which was, however, not serious enough to be
classified as pathological. The court therefore considered that he
had acted with full criminal responsibility. The applicant’s
preventive detention was necessary as, owing to his criminal
tendencies, there was a risk that he might commit similar serious
offences in the future and he was thus a danger to the public.
2. The execution of the order for the applicant’s
preventive detention
On
21 August 1996 the Regensburg Regional Court ordered that the
applicant’s preventive detention, imposed by the judgment of 9
April 1987 of the Munich I Regional Court, take place in a
psychiatric hospital (Article 67c § 1 and Article 67a §
2 of the Criminal Code, see paragraphs 43 and 47 below) from 5
November 1996, when the applicant would have fully served his prison
sentence. According to the report drawn up at the court’s
request by an external psychiatric expert, L., the findings of whom
the court endorsed, the applicant suffered from schizophrenia simplex
characterised by autistic behaviour and from a serious personality
disorder. The expert took the view that the applicant had not been
diagnosed with that illness before 1990 because it was characterised
mostly by disorders concerning the affectivity, thinking or
personality and less by hallucinations or delusional ideas. He should
therefore be transferred to a psychiatric hospital as soon as
possible for socio-therapeutic treatment and medication. Without such
treatment, the applicant, owing to his tendency to commit serious
offences, was a danger to the public.
On
5 November 1996 the applicant, having fully served his prison
sentence, was placed for the first time in preventive detention, in
psychiatric hospitals in Haar and Straubing.
On
29 July 1999 the Regensburg Regional Court ordered that the
applicant’s preventive detention should take place in prison
instead of in a psychiatric hospital (Article 67a § 3 of the
Criminal Code, see paragraph 47 below). It considered that the
applicant’s preventive detention in a psychiatric hospital was
not helping to rehabilitate him.
The
Regional Court noted that the psychiatric expert, L., whom it had
consulted in 1996, had taken the view that the applicant’s
chronic schizophrenia could be better treated and his rehabilitation
better furthered in a psychiatric hospital. A doctor at Haar
Psychiatric Hospital had considered that the applicant suffered from
an antisocial personality disorder and, possibly, from psychosis of a
schizophrenic nature. The treating doctors at Straubing Psychiatric
Hospital had, however, taken the view that the applicant’s
rehabilitation could not be furthered in that clinic as the
applicant, who suffered from a schizophrenic-type disorder and
antisocial conduct, had persistently refused any of the therapies
offered. The Straubing prison authorities had opposed the applicant’s
transfer back to prison, arguing that the applicant’s illness
could only be treated in a psychiatric hospital. The court, having
heard the applicant in person, endorsed the hospital’s
findings.
Since
26 August 1999 the applicant has been detained in a separate wing of
Straubing Prison for persons in preventive detention.
The
continuation of the applicant’s preventive detention in prison
was ordered by the Regensburg Regional Court on 21 June 2001.
On
13 May 2004 the Regensburg Regional Court ordered that the
applicant’s preventive detention was to take place in a
psychiatric hospital (Article 67a §§ 1 and 2 of the
Criminal Code, see paragraph 47 below). On 25 June 2004 the Nuremberg
Court of Appeal quashed that decision for lack of sufficient findings
as to the illnesses or disorders from which the applicant suffered
and as to the need to treat these in a psychiatric hospital and
remitted the case to the Regional Court.
On
17 March 2005 the Regensburg Regional Court ordered that the measure
of the applicant’s preventive detention be further enforced in
prison. It underlined that for the applicant to be transferred to a
psychiatric hospital under Articles 67a and 63 of the Criminal Code,
it was only decisive whether the applicant’s rehabilitation
could be better furthered thereby; the preconditions of Article 63 of
the Criminal Code (see paragraph 48 below) did not have to be
met.
The
Regensburg Regional Court endorsed the findings of a psychiatric
expert, W., it had consulted. The expert had considered that the
applicant most probably suffered from a serious personality disorder
with antisocial and schizoid elements, but not from schizophrenia
simplex. As he refused therapy and his conduct had not changed
substantially since 1986 he was liable to reoffend if released. The
expert held that he should not be transferred to a psychiatric
hospital under Article 67a §§ 1 and 2 of the Criminal Code.
His rehabilitation could not be better furthered by such a transfer,
as required by the said provision, because the disorder from which he
suffered could not be treated primarily by medication and he refused
therapy. Expert W.’s findings were contested by the medical
director of the psychiatric wing of Straubing Prison, who maintained
that the applicant suffered from an illness, schizophrenia simplex,
which could be adequately treated only in a psychiatric hospital.
B. The proceedings at issue
1. The decision of the Regensburg Regional Court
On
5 October 2006 the Regensburg Regional Court, sitting as a chamber
responsible for the execution of sentences, ordered the applicant’s
preventive detention to continue even after completion of ten years
in such detention (Article 67d § 3 of the Criminal Code, see
paragraph 46 below).
The
Regional Court found that the applicant was liable to commit further
offences, in particular assaults and robberies, if released. It
further considered that the applicant was not to be transferred to a
psychiatric hospital under Article 67a § 2 of the Criminal Code
because his rehabilitation could not be better furthered thereby. It
referred in this respect to the findings of the psychiatric expert it
had consulted, P., who had found that the applicant refused treatment
in a psychiatric hospital. The court noted that the fact that the
applicant suffered from a mental illness and the particular nature of
that illness was not decisive for its finding under Article 67a §
2 of the Criminal Code that the applicant’s rehabilitation
could not be better furthered in a psychiatric hospital. Its view
that the applicant’s preventive detention should take place in
prison was confirmed by the fact that the applicant’s previous
transfer to a psychiatric hospital had not yielded any success.
In
reaching its decision, the Regional Court had regard to the report
dated 25 May 2006 submitted by expert P. The latter, who had examined
the applicant in person, had taken the view that the applicant, an
antisocial personality, suffered from a schizophrenic-type disorder
characterised by noticeable problems in the person’s conduct,
thinking and mood, which gave the impression of schizophrenia, but
without any symptoms indicating actual schizophrenia. He had
considered that the applicant did not suffer from schizophrenia, a
diagnosis made following several previous examinations and as
maintained by the medical director of the psychiatric wing of
Straubing Prison, L., who still considered that the applicant could
be adequately treated only in a psychiatric hospital. Expert P. noted
that since 2002 the applicant was no longer being treated in the
psychiatric wing of Straubing Prison.
The
psychiatric expert had further considered that the applicant was
likely to reoffend in view of his numerous previous convictions and
the fact that he had committed his offences in 1986 shortly after
having been released from prison. Moreover, he had subsequently been
convicted of assault (in 1995) and of a drug offence committed in
prison (in 1989). He hardly had any social contact outside prison.
His personality disorder had not been treated as he had refused
psychiatric therapy. He had also refused to apply for relaxations in
the conditions of his detention and had announced that he would
abscond if granted leave under escort. Measures would need to be
taken to prepare his conditional release, such as finding contact
persons outside prison, social training and relaxations in the
conditions of his detention as soon as this appeared justifiable.
By
4 November 2006 the applicant had served ten years in preventive
detention.
2. The decision of the Nuremberg Court of Appeal
On
27 December 2006 the Nuremberg Court of Appeal dismissed the
applicant’s appeal. Endorsing the reasons given by the Regional
Court, it found that there was still a risk that, if released, the
applicant, owing to his criminal tendencies, might commit serious
offences, in particular assaults, robberies or thefts, resulting in
considerable psychological or physical harm to the victims (Article
67d § 3 of the Criminal Code). His continued preventive
detention was therefore still proportionate.
The
Court of Appeal endorsed expert P.’s finding that the
applicant’s rehabilitation would not have been better furthered
by his transfer to a psychiatric hospital as he refused treatment.
3. The decision of the Federal Constitutional Court
On
25 January 2007 the applicant lodged a constitutional complaint with
the Federal Constitutional Court. He argued that his continued
preventive detention after completion of ten years on the basis of
the amended Article 67d § 3 of the Criminal Code, which had
entered into force after he had committed his offence, violated his
human dignity, his right to liberty, the prohibition of retrospective
punishment and the right not to be punished twice for the same
offence under the Basic Law.
On
23 July 2007 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
241/07). It found that the applicant’s complaint had no
prospects of success. The criminal courts had verified the continued
danger posed by the applicant in accordance with the standards set by
the Basic Law. Article 67d § 3 of the Criminal Code, as amended
in 1998, permitted the continued preventive detention, for several
decades if necessary, of incorrigible offenders who persisted in
refusing any treatment and remained a danger despite their advancing
age.
C. The conditions of the applicant’s detention
during the execution of the preventive detention order in prison
Since
26 August 1999 the preventive detention order against the applicant
has been executed in a separate wing of Straubing Prison for persons
in preventive detention. Persons in preventive detention have certain
privileges compared with convicted offenders serving their sentence.
In
particular, at the relevant time, persons in preventive detention had
more wide-ranging possibilities to occupy themselves in their spare
time (one extra hour could be spent outside on non-working days; use
of a well-equipped sports room; additional private telephone calls).
They had shorter lock-up hours (some five hours less per day), more
generous visiting times (up to seven hours extra per month) and more
wide-ranging opportunities to purchase goods (four extra
opportunities to buy a larger variety of goods). They further had the
right to wear their own underwear, use their own bed linen and bath
robes, and have more pocket money. They had bigger cells (the
applicant’s cell measures approximately 8.75 sq. m) which they
could equip with bigger TV sets and additional furniture.
The
applicant is considered by the Straubing prison authorities to be a
nervous choleric person filled with hatred. Numerous disciplinary
measures have had to be imposed on him, in particular for assaults on
fellow prisoners and insults directed at the prison staff. He neither
has contact with his fellow prisoners nor does he receive any visits
from outside the prison. Since 1991 it has no longer been possible to
assign him suitable work in prison.
As
regards the therapy offered to the applicant, he stopped taking
medication shortly after having started treatment for schizophrenia
simplex with which he was diagnosed in 1990. This led to disturbances
in his thinking, insufficient energy and a risk of occasional
hallucinations. The legal preconditions for the forced administration
of medication have never been met.
Between
November 1996 and August 1999 the applicant was offered psychiatric
treatment for schizophrenia simplex with which he had been diagnosed
in Haar and Straubing psychiatric hospitals but he was unwilling to
undergo treatment.
In
Straubing Prison the applicant consistently refuses to accept the
treatment offered or to meet the psychiatric experts who come to
examine him in person.
D. Subsequent developments
On
19 February 2009 the Regensburg Regional Court, sitting as a chamber
responsible for the execution of sentences, ordered the applicant’s
preventive detention to continue under Article 67d § 3 of the
Criminal Code. Endorsing the findings made by the psychiatric expert
it had consulted, N., the court found that there was still a risk
that the applicant, owing to his criminal tendencies, might commit
serious offences if released. There was a risk, in particular, that
he might commit assaults and robberies, resulting in considerable
psychological or physical harm to the victims. The court further
considered that the applicant’s preventive detention should not
take place in a psychiatric hospital under Articles 67a § 2 and
63 of the Criminal Code because, as had been convincingly shown by
the expert, the applicant’s rehabilitation could not be better
furthered thereby. The fact that the applicant suffered from a
psychiatric illness was not decisive for the decision to be taken
under the said provisions.
The
expert consulted by the court, who had to draw up his report on the
basis of the case file as the applicant had refused to submit himself
for examination, found that the applicant suffered from an antisocial
personality disorder, characterised by a lack of empathy, disregard
for social rules, aggressive behaviour and a lack of feelings of
guilt. He further suffered from a schizophrenic-type disorder, which
was generally characterised by eccentric behaviour and abnormalities
in the person’s thinking and mood, which gave the impression of
schizophrenia without any symptoms indicating actual schizophrenia:
the applicant displayed eccentric and mistrustful behaviour, lacked
social contact and experienced occasional hallucinations. It was,
however, very unlikely that he suffered from schizophrenia simplex.
The disorders from which the applicant suffered had still not been
treated successfully and he continued to refuse therapy and
medication. Therefore, the applicant’s rehabilitation could not
be better furthered in a psychiatric hospital, where a lack of
disciplinary measures could lead to him displaying even more
antisocial conduct. He considered that the applicant should be
transferred to a psychiatric hospital under Article 67a § 2 of
the Criminal Code if he no longer refused to take the necessary
medication.
On
17 March 2009 the Nuremberg Court of Appeal, endorsing the reasons
given by the Regional Court, dismissed the applicant’s appeal.
On
13 December 2010 the Nuremberg Court of Appeal dismissed the
applicant’s appeal against the Regensburg Regional Court’s
decision of 4 November 2010 not to order his immediate release in
view of the Court’s judgment of 17 December 2009 in the case of
M. v. Germany (cited above). It found that the applicant’s
objections had to be examined in different proceedings to be
instituted ex officio under Article 67e § 1 of the
Criminal Code (see paragraph 44 below).
The
city of Straubing did not subsequently apply for the applicant to be
placed in a psychiatric hospital under section 1 of the Bavarian
(Mentally Ill Persons’) Placement Act (see paragraph 49 below).
The psychiatric expert it had consulted, who had examined the
applicant in person, had considered that the applicant suffered from
a personality disorder with antisocial and schizoid elements, but not
from a schizophrenic psychosis. The applicant’s free will was
not impaired by that personality disorder so that the requirements
for a placement in a psychiatric hospital under the said Act were not
met.
Following
the leading judgment of 4 May 2011 of the Federal Constitutional
Court on preventive detention (see paragraphs 51-55 below), the
Regensburg Regional Court initiated proceedings for a fresh review of
whether the applicant’s preventive detention was to be
terminated in the light of the principles established in the said
judgment. The psychiatric expert consulted in the proceedings had to
draw up her report on the basis of the case-file as the applicant
refused to have himself examined by her. She took the view that the
applicant suffered from a mental disorder (a schizophrenic-type
personality disorder and a dissocial personality) within the meaning
of section 1 of the Therapy Detention Act (see paragraph 50 below).
It was his dissocial personality which contributed considerably to
his dangerousness. In the expert’s view, it was highly likely
that the applicant would commit further violent offences if released.
On 25 August 2011 the Regensburg Regional Court, endorsing the
findings of the psychiatric expert, decided not to declare the
execution of the preventive detention order against the applicant
terminated. The proceedings are currently pending before the Court of
Appeal.
The
applicant is currently still in preventive detention, imposed by the
Munich I Regional Court on 9 April 1987 and taking place in a
separate wing of Straubing Prison for persons in preventive
detention.
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 a danger
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 order for enforcement of the preventive
detention measure
Article
67c of the Criminal Code governs orders for the preventive detention
of convicted persons which has not taken place immediately after the
judgment ordering it becomes final. Paragraph 1 of the Article
provides that if a term of imprisonment is served 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 the execution of the preventive
detention order and applies a measure of probation; supervision of
the person’s conduct (Führungsaufsicht) commences
with the suspension.
C. Judicial review and duration of preventive detention
Pursuant
to Article 67e of the Criminal Code, the court (that is, the chamber
responsible for the execution of sentences) may review at any time
whether the further execution of the preventive detention order
should be suspended and a measure of probation applied. It is obliged
to do so within fixed time-limits (paragraph 1 of Article 67e). For
persons in preventive detention, this time limit is two years
(paragraph 2 of Article 67e).
Under
Article 67d § 1 of the Criminal Code, in its version in force
prior to 31 January 1998, the first period of 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, provides 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 offender’s
conduct. 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.
D. Transfer for enforcement of a different measure of
correction and prevention
Article
67a of the Criminal Code contains provisions on the transfer of
detainees for the execution of a different measure of correction and
prevention than the measure ordered in the judgment against them.
Under Article 67a § 2, read in conjunction with § 1, of the
Criminal Code, the court may subsequently transfer a perpetrator
against whom preventive detention was ordered to a psychiatric
hospital if the perpetrator’s reintegration into society can be
better promoted thereby. The court may quash that decision if it
later emerges that no success can be achieved by placing the
perpetrator in a psychiatric hospital (Article 67a § 3). The
duration of the placement is determined by the provisions which apply
to the measure ordered in the judgment (Article 67a § 4).
E. The detention of mentally ill persons
The
detention of mentally ill persons is provided for, first of all, in
the Criminal Code as a measure of correction and prevention if the
detention is ordered in relation to an unlawful act committed by the
person concerned. Article 63 of the Criminal Code provides that if
someone commits an unlawful act without criminal responsibility or
with diminished criminal responsibility, the court will order his
placement – without any maximum duration – in a
psychiatric hospital if a comprehensive assessment of the defendant
and his acts reveals that, as a result of his condition, he can be
expected to commit serious unlawful acts and that he is therefore a
danger to the general public.
Secondly,
pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the
Placement in an Institution of Mentally Ill Persons and Their Care of
5 April 1992 (Bavarian (Mentally Ill Persons’) Placement
Act – Bayerisches Gesetz über die Unterbringung
psychisch Kranker und deren Betreuung) a court may order a
person’s placement in a psychiatric hospital at the request of
the authorities of a town or county if the person concerned is
mentally ill and thereby poses a severe threat to public security and
order. Such an order may only be executed as long as no measure under
Article 63 of the Criminal Code has been taken (section 1 § 2 of
the said Act).
Furthermore,
on 1 January 2011, following the Court’s judgment in the case
of M. v. Germany (cited above), the Act on Therapy and
Detention of Mentally Disturbed Violent Offenders (Therapy Detention
Act – Gesetz zur Therapierung und Unterbringung psychisch
gestörter Gewalttäter) entered into force. Under
sections 1 § 1 and 4 of that Act, the civil sections of the
Regional Court may order the placement in a suitable institution of
persons who may no longer be kept in preventive detention in view of
the prohibition of retrospective aggravations in relation to
preventive detention. Such a therapy detention may be ordered if the
person concerned has been found guilty by final judgment of certain
serious offences for which preventive detention may be ordered under
Article 66 § 3 of the Criminal Code. The person must further
suffer from a mental disorder owing to which it is highly likely that
he will considerably impair the life, physical integrity, personal
liberty or sexual self-determination of another person. The person’s
detention must be necessary for the protection of the public.
F. Recent case-law of the Federal Constitutional Court
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 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. It found that 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 latest. 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 within the meaning of section 1 § 1 of the
Therapy Detention Act (see paragraph 50 above). 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 (see §§ 138
and 143-156 of the Federal Constitutional Court’s judgment). 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; see § 89 of the
Federal Constitutional Court’s judgment). It stressed that, in
line with that openness of the Constitution to public international
law, it attempted to avoid breaches of the Convention in the
interpretation of the Constitution (see §§ 82 and 89 of the
Federal Constitutional Court’s judgment).
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; see §§ 137 ss. of the Federal Constitutional Court’s
judgment). It stressed, in particular, that the constitutional
requirement of establishing a difference between preventive detention
and detention for serving a term of imprisonment and the principles
laid down in Article 7 of the Convention required an individualised
and intensified offer of therapy and care to the persons concerned.
In line with the Court’s findings in the case of M. v.
Germany (cited above, § 129), it was necessary to provide a
high level of care by a team of multi-disciplinary staff and to offer
the detainees an individualised therapy if the standard therapies
available in the institution did not have prospects of success (see §
113 of the Federal Constitutional Court’s judgment).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
Without
invoking any specific Article of the Convention, the applicant
complained that the retrospective extension of his first preventive
detention from the maximum period of ten years to an unlimited period
of time violated his human rights as he continued to be deprived of
his liberty. His complaint falls to be examined first under Article 5
§ 1 of the Convention, which, in so far as relevant, reads as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court; ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
(e) the lawful detention ... of persons of
unsound mind ...;”
The
Government contested that argument.
A. Admissibility
1. The parties’ submissions
The
Government submitted that following the Court’s judgment in the
case of M. v. Germany (cited above), the applicant could have
lodged a request with the courts responsible for the execution of
sentences for his preventive detention to be terminated. As he failed
to do so, he did not exhaust domestic remedies in accordance with
Article 35 § 1 of the Convention.
In
their further observations dated 14 June 2011 the Government objected
that the applicant had failed to exhaust domestic remedies also for
another reason. They argued that in its leading judgment of 4 May
2011 on preventive detention (see paragraphs 51-55 above), the
Federal Constitutional Court had introduced a new domestic remedy for
review of the ongoing preventive detention of persons concerned by
that judgment. In particular, in parallel cases to the M. v.
Germany case (cited above), in which preventive detention had
been extended beyond the former ten-year maximum duration, the courts
dealing with the execution of sentences could only order the
continuation of that detention under restrictive conditions. The
preventive detention of the persons concerned could only be prolonged
if, owing to specific circumstances relating to their person or their
conduct, they were highly likely to commit the most serious crimes of
violence or sexual offences and if, additionally, they suffered from
a mental disorder within the meaning of sub-paragraph (e) of Article
5 § 1. If that was not the case, the detainees had to be
released no later than 31 December 2011. The applicant had been
obliged to exhaust that new domestic remedy.
The
Government further took the view that the applicant could no longer
claim to be the victim of a violation of his Convention rights. In
its above-mentioned judgment, the Federal Constitutional Court had
implemented the findings the Court had made in its judgments on
German preventive detention. The Convention violations found have
thus partly been remedied by the Federal Constitutional Court in its
transitional rules, and will partly be remedied as soon as possible.
The
applicant did not comment on these points.
2. The Court’s assessment
(a) Exhaustion of domestic remedies
The
Court reiterates that under Article 35 § 1 of the Convention,
recourse should be had to remedies which are available and sufficient
to afford redress in respect of the breach of the Convention alleged
(see, among many others, Akdivar and Others v. Turkey, 16
September 1996, § 66, Reports of Judgments and Decisions
1996 IV).
According
to Rule 55 of the Rules of Court, any plea of inadmissibility must,
in so far as its character and the circumstances permit, be raised by
the respondent Contracting Party in its observations on the
admissibility of the application submitted as provided in Rule 54
(compare also Sejdovic v. Italy [GC], no. 56581/00, § 41,
ECHR 2006 II; Mooren v. Germany [GC], no.
11364/03, § 57, ECHR 2009 ...; and Medvedyev and
Others v. France [GC], no. 3394/03, § 69, ECHR
2010 ...). It observes that the Government objected that the
applicant had failed to exhaust the domestic remedies made available
by the Federal Constitutional Court only in further observations
lodged after the exchange of observations between the parties had
been completed in compliance with Rule 54 § 2 (b). Therefore, an
issue arises in relation to whether the Government must be considered
to have been prevented from raising that objection at this stage of
the proceedings (compare also Stanev v. Bulgaria (dec.), no.
36760/06, § 114, 29 June 2010).
The
Court further reiterates that the assessment of whether domestic
remedies have been exhausted is normally carried out with reference
to the date on which the application was lodged with it. However, as
it has held on many occasions, this rule is subject to exceptions,
which may be justified by the particular circumstances of each case
(see Demopoulos and Others v. Turkey (dec.) [GC], nos.
46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04,
21819/04, § 87, 1 March 2010 with many further references) This
was notably the case if the remedies under consideration were enacted
to redress at a domestic level the Convention grievances of persons
whose applications pending before the Court concerned similar issues
(see Demopoulos, cited above, § 87).
The
Court observes that in the proceedings at issue in the application
before it the applicant appealed against the decision of the
Regensburg Regional Court dated 5 October 2006 and obtained decisions
on the merits from the Nuremberg Court of Appeal (27 December 2006)
and from the Federal Constitutional Court (23 July 2007). He had
therefore exhausted domestic remedies as required by Article 35 §
1 of the Convention at the date on which he lodged his application
with the Court.
The
Court further takes note of the Government’s argument that the
applicant should also have exhausted the new remedies available
following this Court’s judgment in the case of M. v. Germany
(cited above) and the Federal Constitutional Court’s judgment
dated 4 May 2011. The Court considers that it can leave open the
question whether the Government were (partly) estopped from raising
these objections at this stage of the proceedings. It may further
leave open whether it should make an exception from the rule that the
assessment of whether domestic remedies have been exhausted is
carried out with reference to the date on which the application was
lodged with it. The applicant in the present case complained about
his preventive detention as ordered by the decision of the Regensburg
Regional Court dated 5 October 2006, confirmed on appeal. Any
remedies introduced subsequently, after the Court’s judgment of
17 December 2009 in the M. v. Germany case (cited
above), for review of his continued preventive detention are not,
therefore, capable of affording redress to the applicant in relation
to the prior period of preventive detention here at issue. In
particular, it has not been shown that by exhausting these remedies,
the applicant could obtain adequate compensation in relation to his
preventive detention starting on 5 November 2006. The applicant thus
did not have to exhaust these remedies for the purposes of Article 35
§ 1 of the Convention. Consequently, the Government’s
objections of non-exhaustion of domestic remedies must be rejected.
(b) Loss of victim status
The
Court observes that the Government also objected that the applicant
could no longer claim to be the victim of a violation of his
Convention rights as the Federal Constitutional Court remedied the
alleged Convention violations by its judgment of 4 May 2011 and, in
particular, by the transitional rules it contains. The Court
reiterates that a decision or measure favourable to the applicant is
not in principle sufficient to deprive him of his status as a
“victim” of a violation of a Convention right within the
meaning of Article 34 of the Convention unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention (see, inter
alia, Eckle v. Germany, 15 July 1982, § 66, Series A
no. 51; Amuur v. France, 25 June 1996, § 36, Reports
1996 III; and Dalban v. Romania [GC], no. 28114/95, §
44, ECHR 1999-VI).
The
Court notes that in its leading judgment of 4 May 2011, the Federal
Constitutional Court relied on the interpretation of Article 5 and
Article 7 of the Convention adopted by this Court in its judgment in
M. v. Germany (cited above) and the follow-up cases
thereto. It welcomes the Federal Constitutional Court’s
approach of interpreting the provisions of the Basic Law also in the
light of the Convention and this Court’s case-law, which
demonstrates that court’s continuing commitment to the
protection of fundamental rights not only on national, but also on
European level. It agrees with the Government that by its judgment,
the Federal Constitutional Court implemented this Court’s
findings in its above-mentioned judgments on German preventive
detention in the domestic legal order. It gave clear guidelines both
to the domestic criminal courts and to the legislator on the
consequences to be drawn in the future from the fact that numerous
provisions of the Criminal Code on preventive detention were
incompatible with the Basic Law, interpreted, inter alia, in
the light of the Convention. Its judgment thus reflects and assumes
the joint responsibility of the State Parties and this Court in
securing the rights set forth in the Convention.
Having
regard to the scope of the Federal Constitutional Court’s
judgment, the Court, referring to its findings above (see paragraph
66), considers, however, that that judgment cannot be considered as
having granted redress for the alleged breach of Article 5 § 1
by the applicant’s preventive detention as from 5 November 2006
at issue in the impugned decisions of the domestic courts. The
Government’s objection that the applicant lost his victim
status must therefore equally be rejected.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
applicant took the view that his case was a parallel case to that of
M. v. Germany (cited above) and that, accordingly, his
continued preventive detention beyond a period of ten years violated
Article 5 § 1 of the Convention.
As
regards the compliance of the applicant’s continued detention
with Article 5 § 1, the Government referred to their
observations made on that issue in the case of M. v. Germany
(cited above). They took the view that in terms of the temporal
course of events, the present application was a parallel case to that
of M. v. Germany.
The
Government generally expressed doubts whether a narrow interpretation
of sub-paragraphs (a) to (e) of Article 5 § 1 was necessary to
protect individuals from arbitrary detention. That interpretation had
to take into account the States’ duty, originating in human
rights and, in particular, in Articles 2 and 3 of the Convention, to
protect victims from further offences. They took the view that
“conviction” under sub-paragraph (a) of Article 5 §
1, contrary to the Court’s case-law, should not only comprise a
finding of guilt in respect of an offence and the imposition of a
measure involving deprivation of liberty by the sentencing court, but
that it should also comprise the decisions of the courts responsible
for the execution of sentences to extend a person’s detention
depending on the danger he or she presented. There was also a causal
connection between the order for the applicant’s preventive
detention by the sentencing court and his continued preventive
detention after the ten-year point because the latter complied with
the aim of the initial decision of the sentencing court to protect
the public from crime.
In
the Government’s submission, the present application could, in
any event, be distinguished from the case of M. v. Germany. In
that case, the applicant, Mr M., had no longer suffered from a
serious mental disorder and had not been detained for being of
unsound mind under sub-paragraph (e) of Article 5 § 1. In
contrast, the preventive detention of the applicant in the present
case was justified under sub-paragraph (e) of the said provision. The
sentencing Regional Court had found that the applicant suffered from
a personality disorder but had acted with full criminal
responsibility (see paragraph 8 above). In the Government’s
view, that personality disorder had to be qualified as a “true
mental disorder” for the purposes of the Court’s case-law
as established, in particular, in Winterwerp v. the Netherlands
(24 October 1979, Series A no. 33), and the applicant thus had
to be considered as being of unsound mind. They stressed that the
fact that a person had committed an offence with full criminal
responsibility did not warrant the conclusion that the person did not
suffer from a mental disorder for the purposes of sub-paragraph (e)
of Article 5 § 1 and section 1 of the Therapy Detention Act (see
paragraph 50 above). A person may have been fully capable of
appreciating the wrongfulness of his act and of acting accordingly at
the time of his offence and thus have been criminally responsible.
This did not, however, exclude that owing to a serious mental
disorder, that person was very liable to commit serious violent or
sexual offences in the future.
The
Government further referred to the findings of the psychiatric
experts heard throughout the proceedings for review of the
applicant’s preventive detention to the effect that the
applicant was suffering from a chronic schizophrenic disorder with
autistic behaviour (see paragraph 9 above) and from a serious
personality disorder with antisocial and schizoid elements (see
paragraphs 12, 17, 20 and 34 above). They argued that the courts
responsible for the execution of sentences had also based their view
that the applicant was liable to reoffend on these elements.
Therefore, the applicant’s preventive detention had taken place
in a psychiatric hospital from 6 November 1996 to 26 August 1999.
Moreover, for persons who were unwilling to undergo therapy,
psychiatric hospitals were not a suitable institution for the
purposes of the said provision. Those persons would disturb the
proper working of those institutions to the detriment of other
patients.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
The
Court reiterates the fundamental principles laid down in its case law
on Article 5 § 1 of the Convention, which have been summarised
in its judgment of 17 December 2009 relating to preventive detention
in the case of M. v. Germany, no. 19359/04, as follows:
“86. Article 5 § 1 sub-paragraphs
(a) to (f) contain an exhaustive list of permissible grounds for
deprivation of liberty, and no deprivation of liberty will be lawful
unless it falls within one of those grounds (see, inter alia,
Guzzardi v. Italy, 6 November 1980, § 96, Series A no.
39; Witold Litwa v. Poland, no. 26629/95, § 49,
ECHR 2000 III; and Saadi v. the United Kingdom [GC],
no. 13229/03, § 43, ECHR 2008 ...). ...
87. For the purposes of sub-paragraph (a) of
Article 5 § 1, the word “conviction”, having regard
to the French text (“condamnation”), has to be
understood as signifying both a finding of guilt after it has been
established in accordance with the law that there has been an offence
(see Guzzardi, cited above, § 100), and the imposition of
a penalty or other measure involving deprivation of liberty (see Van
Droogenbroeck v. Belgium, 24 June 1982, § 35,
Series A no. 50).
88. Furthermore, the word “after”
in sub-paragraph (a) does not simply mean that the “detention”
must follow the “conviction” in point of time: in
addition, the “detention” must result from, follow and
depend upon or occur by virtue of the “conviction” (see
Van Droogenbroeck, cited above, § 35). In short, there
must be a sufficient causal connection between the conviction and the
deprivation of liberty at issue (see Weeks v. the United Kingdom,
2 March 1987, § 42, Series A no. 114; Stafford v. the
United Kingdom [GC], no. 46295/99, § 64, ECHR
2002 IV; Waite v. the United Kingdom, no. 53236/99,
§ 65, 10 December 2002; and Kafkaris v. Cyprus [GC],
no. 21906/04, § 117, ECHR 2008 ...). ...
89. Furthermore, under sub-paragraph (c) of
Article 5 § 1, detention of a person may be justified “when
it is reasonably considered necessary to prevent his committing an
offence”. However, that ground of detention is not adapted to a
policy of general prevention directed against an individual or a
category of individuals who present a danger on account of their
continuing propensity to crime. It does no more than afford the
Contracting States a means of preventing a concrete and specific
offence (see Guzzardi, cited above, § 102; compare also
Eriksen, cited above, § 86). This can be seen both from
the use of the singular (“an offence”) and from the
object of Article 5, namely to ensure that no one should be
dispossessed of his liberty in an arbitrary fashion (see Guzzardi,
ibid.).”
The
Court further reiterates that the term “persons of unsound
mind” in sub-paragraph (e) of Article 5 § 1 does not lend
itself to precise definition since its meaning is continually
evolving as research in psychiatry progresses (see Winterwerp v.
the Netherlands, 24 October 1979, § 37, Series A no. 33, and
Rakevich v. Russia, no. 58973/00, § 26, 28 October 2003).
An individual cannot be deprived of his liberty as being of “unsound
mind” unless the following three minimum conditions are
satisfied: firstly, he must reliably be shown to be of unsound mind,
that is, a true mental disorder must be established before a
competent authority on the basis of objective medical expertise;
secondly, the mental disorder must be of a kind or degree warranting
compulsory confinement; thirdly, the validity of continued
confinement depends upon the persistence of such a disorder (see
Winterwerp, cited above, § 39; Varbanov v. Bulgaria,
no. 31365/96, §§ 45 and 47, ECHR 2000 X;
Hutchison Reid v. the United Kingdom, no. 50272/99, §
48, ECHR 2003 IV; Shtukaturov v. Russia, no. 44009/05,
§ 114, 27 March 2008; and Kallweit v. Germany, no.
17792/07, § 45, 13 January 2011).
In
deciding whether an individual should be detained as a person “of
unsound mind”, the national authorities are to be recognised as
having a certain discretion since it is in the first place for the
national authorities to evaluate the evidence adduced before them in
a particular case; the Court’s task is to review under the
Convention the decisions of those authorities (see Winterwerp,
cited above, § 40, and H.L. v. the United Kingdom,
no. 45508/99, § 98, ECHR 2004 IX). The relevant time
at which a person must be reliably established to be of unsound mind,
for the requirements of sub-paragraph (e) of Article 5 § 1, is
the date of the adoption of the measure depriving that person of his
liberty as a result of that condition (compare Luberti v. Italy,
23 February 1984, § 28, Series A no. 75).
Furthermore,
there must be some relationship between the ground of permitted
deprivation of liberty relied on and the place and conditions of
detention. In principle, the “detention” of a person as a
mental health patient will only be “lawful” for the
purposes of sub-paragraph (e) of paragraph 1 if effected in a
hospital, clinic or other appropriate institution (see Ashingdane
v. the United Kingdom, 28 May 1985, § 44, Series A no. 93;
Aerts v. Belgium, 30 July 1998, § 46, Reports
1998 V; Hutchison Reid, cited above, § 49; Brand
v. the Netherlands, no. 49902/99, § 62, 11 May 2004;
and Haidn v. Germany, no. 6587/04, § 78,
13 January 2011).
(b) Application of these principles to the
present case
The
Court must first determine whether the applicant’s preventive
detention at issue was justified under sub-paragraph (a) of Article 5
§ 1 as occurring “after conviction”, in other words
whether there was still a sufficient causal connection between the
applicant’s conviction and his deprivation of liberty.
The
Court notes that at the time of the applicant’s criminal
conviction by the Munich I Regional Court in 1987, which alone
entailed a finding of guilt (compare, mutatis mutandis, M.
v. Germany, cited above, §§ 95-96), the order for
his preventive detention, read in conjunction with Article 67d §
1 of the Criminal Code in the version then in force (see paragraph 45
above), meant that the applicant, against whom preventive detention
had been ordered for the first time, could be kept in preventive
detention for a maximum period of ten years. Thus, had it not been
for the amendment of Article 67d of the Criminal Code in 1998 (see
paragraph 46 above), which was declared applicable also to preventive
detention orders which had been made – as had the order against
the applicant – prior to the entry into force of that amended
provision (section 1a(3) of the Introductory Act to the Criminal
Code; see paragraph 46 above), the applicant would have been released
when ten years of preventive detention had elapsed, irrespective of
whether he was still considered a danger to the public.
The
present application is therefore a follow-up case, in terms of the
temporal course of events, to the application of M. v. Germany
(cited above), and the Court, having also had regard to the
Government’s submissions relating to its well-established
case-law (see paragraph 73 above), sees no reason to depart from its
findings in that judgment. The Court thus considers, as it did in the
case of M. v. Germany (cited above, §§ 92-101),
that there was not a sufficient causal connection between the
applicant’s conviction by the sentencing court and his
continued deprivation of liberty beyond the period of ten years in
preventive detention. His continued detention was therefore not
justified under sub-paragraph (a) of Article 5 § 1.
The
Court further considers that the applicant’s preventive
detention beyond the ten-year point was also not justified under
sub paragraph (c) of Article 5 § 1 as detention “reasonably
considered necessary to prevent his committing an offence”. The
applicant’s potential further offences were not sufficiently
concrete and specific, as required by the Court’s case-law, as
regards, in particular, the place and time of their commission and
their victims, and do not, therefore, fall within the ambit of
Article 5 § 1 (c) (compare, mutatis mutandis, M. v.
Germany, cited above, § 102).
The
Court shall further examine whether, as submitted by the Government,
the applicant’s detention was justified under sub-paragraph (e)
of Article 5 § 1 as detention of a person “of unsound
mind”. Under the Court’s well-established case-law (see
paragraph 77 above), this requires, in the first place, that the
applicant was reliably shown to be of unsound mind; that is, a true
mental disorder must have been established before a competent
authority on the basis of objective medical expertise.
The
Court notes in this connection that in the proceedings here at issue,
the domestic courts based their decision to extend the applicant’s
preventive detention on the report of a psychiatric expert, P. (see
paragraphs 19-21 above). The expert, who had examined the
applicant in person, had found that the applicant displayed
antisocial behaviour and suffered from a schizophrenic-type disorder.
He had further considered that the applicant did not suffer from
schizophrenia. That latter diagnosis had been made in previous
examinations, notably in 1996, prior to the applicant’s
transfer to a psychiatric hospital (see paragraph 9 above). It had
subsequently been maintained by the medical director of the
psychiatric wing of Straubing Prison (see paragraphs 17 and 20
above), but had already been contested previously by another external
psychiatric expert, W., in 2005 (see paragraph 17 above). The Court
notes that it appears from these findings that the applicant
developed a schizophrenic-type disorder after his conviction in 1987,
when he had been found to suffer only from a personality disorder
characterised, in particular, by antisocial conduct, which was not
such as to be classified as pathological (see paragraph 8 above).
The
Court’s task to determine whether the courts responsible for
the execution of sentences can be said to have established that the
applicant suffered from a true mental disorder within the meaning of
sub paragraph (e) of Article 5 § 1 on the basis of the
said objective medical expertise before them is, however, difficult.
As the Regensburg Regional Court itself stressed (see paragraph 19
above), it was not decisive for their decision whether the
applicant’s preventive detention should take place in a
psychiatric hospital, and even less so for the extension of his
preventive detention as such, whether the applicant suffered from a
mental illness and the particular nature of that illness. The
question before them was whether the applicant was liable to reoffend
if released (Article 67d § 3 of the Criminal Code, see
paragraphs 18-19 and 46 above), be it because of his mental condition
or not (compare in this respect also Kallweit, cited above, §
56). The courts further had to determine under Article 67a §§
1 and 2 of the Criminal Code (see paragraph 47 above) whether the
applicant’s reintegration into society could be better promoted
if his necessary preventive detention took place in a psychiatric
hospital. Again, this finding could, however, be made without the
applicant suffering from a pathological mental disorder diminishing
his criminal responsibility (Article 63 of the Criminal Code, see
paragraphs 16, 19 and 48 above).
However,
even assuming that the courts responsible for the execution of
sentences could be said to have established, as a competent
authority, that the applicant suffered from a “true mental
disorder” warranting his compulsory confinement, the Court
cannot but note that at the time of the proceedings at issue the
applicant was detained in a separate wing of Straubing Prison for
persons in preventive detention. It refers in this connection to its
above case-law that, in principle, the detention of a person as a
mental health patient will only be “lawful” for the
purposes of sub paragraph (e) of Article 5 § 1 if effected
in a hospital, clinic or other appropriate institution (see paragraph
79 above).
Having
regard to the applicant’s conditions of detention in Straubing
Prison (see paragraphs 27-32 above), the Court is not convinced that
the applicant has been offered the therapeutic environment
appropriate for a person detained as being of unsound mind. This has
indeed been confirmed by the Straubing prison authorities themselves
and, in particular, by the medical director of the psychiatric
department of Straubing Prison. Since 1999 and notably also in the
proceedings here at issue, he has maintained that the applicant’s
condition, which he considered as a mental illness, could be
adequately treated only in a psychiatric hospital, and not in the
psychiatric department of Straubing Prison – where the
applicant has not received treatment since 2002 (see paragraphs 12,
17 and 20 above).
The
Court does not overlook the fact that the domestic courts, in the
proceedings at issue, considered that the applicant should not be
transferred to a psychiatric hospital – where persons
considered as mentally ill under German law were placed at the
relevant time – notably because he refused treatment in such an
institution. However, the applicant’s conduct or attitude does
not exempt the domestic authorities from providing persons detained
(solely) as mental health patients with a medical and therapeutic
environment appropriate for their condition. The Court cannot but
subscribe in this context to the reasoning of the Federal
Constitutional Court in its judgment of 4 May 2011 in respect of the
suitable institutions for persons in preventive detention. That court
stressed that both the German Constitution and the Convention
required a high level of individualised and intensified offer of
therapy and care by a team of multi-disciplinary staff to persons in
preventive detention. It further found that detainees had to be
offered an individualised therapy if the standard therapies available
in the institution did not have prospects of success (see paragraph
55 above).
The
Court further has regard, in this respect, to the general
observations made by both the Council of Europe’s Commissioner
for Human Rights and the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) on the
situation of persons in preventive detention (for a summary and
further references see M. v. Germany, cited above, §§
76-77). It is thus aware that long-term detainees suffering from
disorders such as the applicant, who appears unable to make any
effort to improve the prospects of his own release, must be a
considerable challenge to the staff working with them. It takes the
view that the applicant nevertheless had to be provided with a
therapeutic environment appropriate for his mental condition.
Having
regard to the foregoing, the Court considers that in the
circumstances of the present case, the applicant has not been
detained in an institution suitable for the detention of mental
health patients.
Consequently,
the continuation of the applicant’s detention was not covered
by sub-paragraph (e) of Article 5 § 1 either. The Court
further takes the view – and this is uncontested by the parties
– that none of the other sub-paragraphs of Article 5 § 1
can serve to justify the applicant’s detention at issue.
Furthermore,
the Court, having regard to the Government’s submission that
its interpretation of Article 5 § 1 had to take into account the
States’ duty under Articles 2 and 3 of the Convention to
protect victims from further offences (see paragraph 73 above),
refers to its findings in the case of Jendrowiak v. Germany
(no. 30060/04, §§ 36-38, 14 April 2011).
It is aware of the fact that the domestic courts ordered the
applicant’s preventive detention beyond a period of ten years
because they considered that there was still a risk that the
applicant might commit serious offences, such as robberies and
assaults, if released. They thus acted in order to protect potential
victims from physical and psychological harm which might be caused by
the applicant.
However,
while the Convention, and in particular its Articles 2 and 3, obliges
State authorities to take reasonable steps within the scope of their
powers to prevent offences of which they had or ought to have had
knowledge, it does not permit a State to protect individuals from
criminal acts of a person by measures which are in breach of that
person’s Convention rights, in particular the right to liberty
as guaranteed by Article 5 § 1 (see, mutatis mutandis,
Osman v. the United Kingdom, 28 October 1998, § 116,
Reports 1998 VIII; and Opuz v. Turkey,
no. 33401/02, § 129, ECHR 2009 ...), as interpreted in
the Court’s well-established case-law. Consequently, the State
authorities cannot, in the present case, rely on their positive
obligations under the Convention in order to justify the applicant’s
deprivation of liberty which, as has been shown above (see
paragraphs 80 92 above), did not fall within any of the
permissible grounds for deprivation of liberty exhaustively listed
under sub-paragraphs (a) to (f) of Article 5 § 1.
There
has accordingly been a violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE
CONVENTION
The
applicant’s complaint that the retrospective extension of his
first preventive detention from a maximum of ten years to an
unlimited period of time – which became possible owing to the
amendment in 1998 of Article 67d §§ 1 and 3 of the
Criminal Code, read in conjunction with section 1a (3) of the
Introductory Act to the Criminal Code – violated his human
rights also falls to be examined under Article 7 § 1 of the
Convention, which provides:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.”
The
Government contested that allegation.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes, also having regard to its findings above (see paragraphs
62-69), that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
applicant considered that his case was a parallel case to that of M.
v. Germany (no. 19359/04) and that, therefore, his continued
preventive detention beyond the ten-year point violated Article 7 §
1 of the Convention.
The
Government referred to their observations made in relation to Article
7 in the application of M. v. Germany (cited above) to which,
in terms of the temporal course of events, the present application
was comparable.
The
Government submitted that the preventive detention of the applicant
in the present case could not, however, be classified as a “penalty”
within the meaning of Article 7 § 1 because the execution of his
preventive detention order had differed substantially from that of
the applicant in the case of M. v. Germany. The applicant in
the present case had been detained in a psychiatric hospital from 5
November 1996 to 26 August 1999 in accordance with Article 67a §
2 of the Criminal Code (see paragraphs 9-13 and 47 above) where the
enforcement of his preventive detention was completely different from
the execution of a sentence in prison. He had been transferred to
Straubing Prison in 1999 because he had refused therapy.
Moreover,
from September 2010 onwards, the conditions of detention for persons
in preventive detention in Straubing Prison had been further
improved. In particular, all detainees had separate cells measuring
between 10.3 and 12.1 sq. m and had other privileges in addition to
ordinary prisoners serving their sentence as regards remuneration for
work, visiting hours (up to ten extra hours) and shopping (six extra
opportunities).
2. The Court’s assessment
a. Recapitulation of the relevant
principles
The
Court reiterates the relevant principles laid down in its case-law on
Article 7 of the Convention, which have been summarised in its
judgment in the case of M. v. Germany (cited above) as
follows:
“118. Article 7 embodies, inter
alia, the principle that only the law can define a crime and
prescribe a penalty (nullum crimen, nulla poena sine lege).
While it prohibits in particular the retrospective application of the
criminal law to an accused’s disadvantage (see Kokkinakis v.
Greece, 25 May 1993, § 52, Series A no. 260 A) or
extending the scope of existing offences to acts which previously
were not criminal offences, it also lays down the principle that the
criminal law must not be extensively construed to an accused’s
detriment, for instance by analogy (see Uttley v. the United
Kingdom (dec.), no. 36946/03, 29 November 2005, and Achour v.
France [GC], no. 67335/01, § 41, ECHR 2006 IV).
...
120. The concept of “penalty” in
Article 7 is autonomous in scope. To render the protection afforded
by Article 7 effective the Court must remain free to go behind
appearances and assess for itself whether a particular measure
amounts in substance to a “penalty” within the meaning of
this provision (see Welch v. the United Kingdom, 9 February
1995, § 27, Series A no. 307 A; Jamil v. France, 8
June 1995, § 30, Series A no. 317 B; and Uttley,
cited above). The wording of Article 7 paragraph 1, second sentence,
indicates that the starting point in any assessment of the existence
of a penalty is whether the measure in question is imposed following
conviction for a “criminal offence”. Other relevant
factors are the characterisation of the measure under domestic law,
its nature and purpose, the procedures involved in its making and
implementation, and its severity (see Welch, cited above, §
28; Jamil, cited above, § 31; Adamson v. the
United Kingdom (dec.), no. 42293/98, 26 January 1999; Van der
Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 XV;
and Kafkaris, cited above, § 142). The severity of the
measure is not, however, in itself decisive, since, for instance,
many non-penal measures of a preventive nature may have a substantial
impact on the person concerned (see Welch, cited above, §
32; compare also Van der Velden, cited above).”
(b) Application of these principles to the
present case
In
determining whether the applicant’s preventive detention beyond
the initial ten-year point violated the prohibition of retrospective
penalties under Article 7 § 1, second sentence, the Court notes
that the applicant committed the two counts of attempted murder for
which his preventive detention was ordered in 1986. At that time, a
preventive detention order made by a sentencing court for the first
time, read in conjunction with Article 67d § 1 of the Criminal
Code in the version then in force (see paragraph 45 above), meant
that the applicant could be kept in preventive detention for ten
years at the most. Based on the subsequent amendment in 1998 of
Article 67d of the Criminal Code, read in conjunction with section
1a (3) of the Introductory Act to the Criminal Code (see
paragraph 46 above), which abolished that maximum duration with
immediate effect, the courts responsible for the execution of
sentences then ordered, in the proceedings here at issue, the
applicant’s continued preventive detention beyond the ten year
point. Thus, the applicant’s preventive detention – as
that of the applicant in the case of M. v. Germany – was
extended with retrospective effect, under a law enacted after the
applicant had committed his offence.
The
Court further refers to its conclusion in the case of M. v. Germany
(cited above, §§ 124-133) that preventive detention under
the German Criminal Code, having regard to the fact that it is
ordered by the criminal courts following a conviction for a criminal
offence and that it entails a deprivation of liberty which, following
the change in the law in 1998, no longer has any maximum duration, is
to be qualified as a “penalty” for the purposes of the
second sentence of Article 7 § 1 of the Convention. It again
sees no reason to depart from that finding in the present case.
In
particular, it is not convinced that the conditions of the
applicant’s preventive detention beyond the ten-year point (4
November 2006) differed substantially from the situation of the
applicant in the case of M. v. Germany (cited above), in which
it concluded that preventive detention was to be qualified as a
“penalty” for the purposes of Article 7 § 1 of the
Convention. The applicant’s preventive detention as ordered by
the courts responsible for the execution of sentences in 2006 has
taken place in a separate wing of Straubing Prison for persons in
preventive detention. Minor alterations to the detention regime
compared with that of an ordinary prisoner serving his sentence,
including privileges such as those listed above (see paragraphs
27-28), cannot, in the Court’s view, mask the fact that there
has been no substantial difference between the execution of a prison
sentence and that of the preventive detention order against the
applicant. The Court refers in this connection also to the findings
of the Federal Constitutional Court in its leading judgment of 4 May
2011 on preventive detention. In that judgment, the Federal
Constitutional Court equally found that the provisions of the German
Criminal Code on preventive detention – on the basis of which
the applicant’s preventive detention in prison was executed –
did not satisfy the constitutional requirement of establishing a
difference between preventive detention and detention for serving a
term of imprisonment (see paragraph 52 above).
The
Court would further note that its above observations on the scope of
the State authorities’ positive obligation to protect potential
victims from physical and psychological harm which might be caused by
the applicant (see paragraphs 93-94 above) apply, a fortiori,
in the context of the prohibition of retrospective penalties under
Article 7 § 1, from which provision no derogation is allowed
even in time of public emergency threatening the life of the nation
(Article 15 §§ 1 and 2 of the Convention). The Convention
thus does not oblige State authorities to protect individuals from
the criminal acts of the applicant by such measures which are in
breach of his right under Article 7 § 1 not to have imposed upon
him a heavier penalty than the one applicable at the time he
committed his criminal offence (compare also Jendrowiak, cited
above, § 48).
In
view of the foregoing, the Court concludes that there has been a
violation of Article 7 § 1 of the Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
The
Court notes that in several previous judgments concerning German
preventive detention (see, in particular, Mautes v. Germany,
no. 20008/07, §§ 57 ss., 13 January
2011; and Kallweit, cited above, §§ 74 ss.)
it addressed the issue of the execution of its final judgments.
Having regard to the circumstances of the case and the recent
developments in the domestic legal order, it considers it adequate to
determine what consequences may be drawn from Article 46 of the
Convention for the respondent State also in the present case.
Article
46 of the Convention, in so far as relevant, provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties’ submissions
The
applicant did not comment on issues relating to Article 46.
The
Government took the view that by its leading judgment of 4 May 2011
(see paragraphs 51-55 above), the Federal Constitutional Court had
implemented this Court’s judgments on German preventive
detention. It had de facto anticipated a pilot judgment
procedure by this Court, addressing the structural deficits of the
legislation on preventive detention. The Government argued that,
therefore, the present case should be adjourned until the fresh
proceedings before the domestic courts which were made necessary by
the Federal Constitutional Court’s leading judgment were
terminated. The case should only be resumed after the domestic courts
had determined whether the applicant’s current preventive
detention was to continue in the light of the criteria set up in the
Federal Constitutional Court’s judgment.
B. The Court’s assessment
The
Court reiterates that, in accordance with Article 46 of the
Convention, the finding of a violation imposes on the respondent
State a legal obligation not just to pay those concerned the sums
awarded by way of just satisfaction under Article 41, but also to
select, subject to supervision by the Committee of Ministers, the
general and/or, if appropriate, individual measures to be adopted in
their domestic legal order to put an end to the violation found by
the Court and to redress so far as possible the effects (see, inter
alia, Broniowski v. Poland [GC], no. 31443/96, § 192,
ECHR 2004 V; and Sürmeli v. Germany [GC], no.
75529/01, § 137, ECHR 2006 VII).
Furthermore,
it follows from the Convention, and from Article 1 in particular,
that in ratifying the Convention the Contracting States undertake to
ensure that their domestic legislation is compatible with it.
Consequently, it is for the respondent State to remove any obstacles
in its domestic legal system that might prevent the applicant’s
situation from being adequately redressed (see Maestri v. Italy
[GC], no. 39748/98, § 47, ECHR 2004 I; and Assanidze v.
Georgia [GC], no. 71503/01, § 198, ECHR 2004 II).
The
Court further reiterates that its judgments are essentially
declaratory in nature and that, in general, it is primarily for the
State concerned to choose, subject to supervision by the Committee of
Ministers, the means to be used in its domestic legal order in order
to discharge its obligation under Article 46 of the Convention,
provided that such means are compatible with the conclusions set out
in the Court’s judgment (see, among other authorities, Scozzari
and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §
249, ECHR 2000 VIII; Öcalan v. Turkey [GC],
no. 46221/99, § 210, ECHR 2005 IV; and Fatullayev
v. Azerbaijan, no. 40984/07, § 173, 22 April 2010).
However,
exceptionally, with a view to helping a respondent State to fulfil
its obligations under Article 46, the Court will seek to indicate the
type of measure that might be taken in order to put an end to a
violation it has found to exist. In certain cases, the nature of the
violation found may be such as to leave no real choice as to the
measures required to remedy it and the Court may decide to indicate
only one such measure, such as, for instance, securing an applicant’s
immediate release (see, in particular, Assanidze, cited above,
§§ 202-203; and Fatullayev, cited above,
§§ 174 177).
The
Court observes in the present case that following its judgment in the
case of M. v. Germany (cited above) and several follow-up
cases, the Federal Constitutional Court, in a leading judgment of 4
May 2011, held that all provisions on the retrospective prolongation
of preventive detention were incompatible with the Basic Law. That
court further ordered that the courts dealing with the execution of
sentences had to review without delay the detention of persons –
as the applicant in the present case – whose preventive
detention had been prolonged retrospectively. These courts have to
examine whether, owing to specific circumstances relating to his
person or his conduct, the applicant was highly likely to commit the
most serious crimes of violence or sexual offences and if,
additionally, he suffered from a mental disorder within the meaning
of section 1 § 1 of the Therapy Detention Act (compare
paragraphs 50 and 53 above). 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 are not
met, a detainee in the applicant’s position will have to be
released no later than 31 December 2011 (see paragraph 53 above). The
Court further observes that such review proceedings are currently
pending before the domestic courts (see paragraph 38 above).
The
Court would recall that the subsidiary nature of the supervisory
mechanism of complaint to the Court articulated in Articles 1, 35 §
1 and 13 of the Convention and reiterated in the Interlaken
Declaration of 19 February 2010 (PP 6 and part B., § 4 of
the Action Plan) lays the primary responsibility for implementing and
enforcing the rights and freedoms of the Convention on the national
authorities. As it found above (see paragraph 68), the Court
considers, as does the Government, that by its judgment, the Federal
Constitutional Court implemented this Court’s findings in its
above-mentioned judgments on German preventive detention in the
domestic legal order. It thereby fully assumed that responsibility.
By setting a relatively short time-frame of less than eight months
for the domestic courts to reconsider the continuing preventive
detention of the persons concerned in the light of the requirements
of the Basic Law and Articles 5 and 7 of the Convention, it proposed
an adequate solution to put an end to ongoing Convention violations.
In
the light of the foregoing, the Court does not consider it necessary
to indicate any specific or general measures to the respondent State
which are called for in the execution of this judgment. It
understands that the above-mentioned judgment of the Federal
Constitutional Court will be executed and the new review proceedings
be concluded in the light of that court’s and this Court’s
case-law and within the time-limit prescribed in the Federal
Constitutional Court’s judgment. It further notes that the
Convention compliance of the applicant’s preventive detention
as ordered by the Regensburg Regional Court on 5 October 2006 and as
confirmed by the Nuremberg Court of Appeal (27 December 2006) and the
Federal Constitutional Court (23 July 2007) here at issue was not the
subject-matter of the said leading judgment of the Federal
Constitutional Court. The new judicial review ordered by the latter
court, consequently, does not cover the applicant’s past
preventive detention during that period. The Court did not,
therefore, consider it appropriate to further adjourn the examination
of the case before it.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant, referring to the Court’s award in M. v. Germany
(cited above), claimed 50,000 euros (EUR) in respect of non-pecuniary
damage, arguing that his detention in breach of the Convention caused
him distress and frustration. Having regard to the compensation of
EUR 25 per day of illegal detention under the current version of
section 7(3) of the Act on Compensation for Criminal Prosecution
Measures, he considered his claim to be adequate. He applied for the
award to be paid into his lawyer’s fiduciary bank account.
The
Government, having regard to the awards made by the Court in previous
cases concerning preventive detention in breach of the Convention and
to the fact that until 4 November 2006 the applicant’s
preventive detention had not been in breach of the Convention,
considered the applicant’s claim to be excessive.
The
Court takes into consideration that the applicant has been detained
in breach of the Convention since 5 November 2006. This must have
caused him non-pecuniary damage such as distress and frustration,
which cannot be compensated solely by the finding of a Convention
violation. Having regard to all the circumstances of the case and
making its assessment on an equitable basis, it awards the applicant
EUR 20,000, plus any tax that may be chargeable, to be paid to the
applicant into his lawyer’s fiduciary bank account.
B. Costs and expenses
The
applicant, who was granted legal aid in the proceedings before the
Court, did not submit a claim for costs and expenses. Accordingly,
the Court does not make an award under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares unanimously the application admissible;
Holds by six votes to one that there has been a
violation of Article 5 § 1 of the Convention;
Holds unanimously that there has been a
violation of Article 7 § 1 of the Convention;
Holds unanimously
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 20,000 (twenty thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be paid into
his lawyer’s fiduciary bank account;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Zupančič is annexed to this judgment.
D.S.
C.W.
DISSENTING OPINION OF JUDGE Zupančič
It
is to my regret that I cannot agree with my colleagues on one
particular point in this judgment against Germany, which is why I
dissented concerning point 2 of the operative part (violation of
Article 5 § 1).
The
essence of the disagreement concerns paragraph 88 of the judgment.
The majority seems to maintain that a person of “unsound mind”
must be offered the appropriate therapeutic environment. In the case
at hand there has indeed been a disagreement between the medical
director of the psychiatric department of Straubing Prison and some
other experts engaged concerning the proper diagnosis, prognosis and
treatment of Mr O.H.
The
key question is not whether a person diagnosed as having personality
disturbances (psychopathy) is either sane or insane according to the
usual rules of substantive criminal law. However, the problem of
their placement in a psychiatric hospital is at least 30 years old.
As a constitutional question it arose in the D.C. Circuit in American
law in the late 60s and early 70s. At that time, the general staff of
the St. Elizabeth Hospital in the District of Columbia has taken the
position that people with personality disturbances (psychopaths) are
not treatable and are not for the purposes of criminal responsibility
insane. We shall not here entertain the question of insanity defence
although it is not completely detachable from the question of
placement of an inmate with a personality disturbance.
The
question is whether a person with such a diagnosis, given the
communis opinio doctorum is treatable at all and whether he
does or does not belong in the psychiatric hospital in the first
place. Let us emphasise that this is not a question of principle or
inherent (in)justice. It is a question of policy deriving from the
established empirical fact that people with personality disorders
tend to create problems which psychiatric hospitals are ill-equipped
to deal with.
The
problem is neither new nor undecided. The constitutional issues
deriving from the right to treatment referred to in the last sentence
of paragraph 90 of the judgment have already been confronted and in
fact decided. This would be one case in which the resulting
comparisons with other legal systems that have already dealt with the
problem ought to be taken seriously.
If the implication of the judgment is that psychopaths
ought to be transferred to psychiatric hospitals and offered the
(non-existent) treatment for their personality disorders, then this
kind of decision with consequences not only for Germany but also for
the rest of the 47 countries of the Council of Europe, is a subject
for the Grand Chamber.
The
issue there would not be a question whether the person with a
personality disturbance is or is not of “unsound mind”:
it would be much more specific.
A
categorical position would have to be taken concerning the criminal
responsibility of people with personality disturbances on the one
hand and their right to treatment, should they be committed as
criminally insane on the other hand.
The
way things stand in jurisdictions that have already dealt with the
problem is that people with personality disturbances (psychopaths)
are criminally responsible and they do belong in prison, not in a
psychiatric hospital. More specifically the problem with the judgment
of the majority is simply the assumption, elaborated in paragraphs
88, 89, 90 and 91, to the effect that people of “unsound mind”
belong in psychiatric hospitals and have a right to treatment. To put
it differently, the category of persons of “unsound mind”
is far too broad and insufficiently nuancé to cover the
problem that we are dealing with here.