European Court of Human Rights

Information Note on the Court’s case-law No. 166

August-September 2013

H.W. v. Germany - 17167/11

Judgment 19.9.2013 [Section V] See: [2013] ECHR 836

Article 5

Article 5-1-a

After conviction

Failure to obtain fresh psychiatric reports before making order for continued preventive detention: violation

 

Article 5-1

Lawful arrest or detention

Order for continued preventive detention made 27 days after expiry of statutory time-limit: violation

 

Facts - In November 1997 the applicant was convicted of a series of offences, including rape, and sentenced to nine years and six months’ imprisonment. At the same time, the sentencing court ordered his preventive detention, finding that he suffered from a personality disorder and had a propensity to commit serious offences, which made him dangerous to the public. In November 2009, after he had served his full sentence and had been held in preventive detention for almost two years, the domestic courts initiated a procedure to review whether his continued preventive detention was necessary, as the statutory two-year time-limit for such a review was due to expire on 24 December 2009. On 20 January 2010, after consulting his case-file and his counsel, a regional court ordered the applicant’s continued preventive detention on the grounds that he was likely to reoffend if released. The decision was upheld on 16 September 2010, when the Constitutional Court declined to consider his constitutional complaint.

In his application to the European Court, the applicant complained under Article 5 § 1 of the Convention that the domestic courts’ had failed to comply with the statutory time-limit for review and had taken their decision without ordering fresh psychiatric reports.

Law - Article 5 § 1

(a)  Failure to comply with the statutory time-limit for review - The order continuing the applicant’s preventive detention had not been made until twenty-seven days after the two-year statutory time-limit had expired. While the Court was prepared to accept that the detention during that period nevertheless remained lawful under the domestic law, it had to go on to determine whether it was arbitrary. Relevant here was the speed with which the domestic courts had issued a fresh detention order after the expiry of the previous one, the existence of adequate safeguards against unreasonable delay, the complexity of the proceedings and the applicant’s conduct.

A delay of almost one month was at the upper limit of what could be considered reasonable, but this depended on all the circumstances. It was notable that the applicant had not contributed to the delays (indeed, he had enquired about progress) and he had clearly not accepted the prolongation of the review proceedings beyond the two-year time-limit. In the Court’s view, the delays in the review proceedings were mainly caused by the fact that the domestic authorities had initiated the review proceedings belatedly, just six weeks before the expiry of the time-limit, and that essential procedural steps, such as the appointment of counsel for the applicant, the grant of access to the case-file and the holding of a hearing were not taken until after the time-limit had expired. There had not been any unforeseeable complexity of the proceedings. Finally, no sufficiently clear safeguards had been in place to ensure that a decision on the applicant’s release from detention would not be delayed unreasonably. The threshold applied by the domestic courts - whether the review procedure disclosed a “flagrant irregularity” - was too high and failed to afford sufficient protection. Accordingly, the applicant’s detention between 24 December 2009 and 20 January 2010 was arbitrary and thus unlawful.

(b)  Failure to obtain up-to-date medical evidence - The domestic courts had had before them a number of elements for concluding that the applicant was still likely to reoffend if released and still dangerous to the public. He had been convicted of very serious sexual offences and, because he said he was only prepared to work with a therapist he could trust, he had not undergone the psycho-therapeutic treatment the psychiatric evidence available at the time of his conviction had indicated was necessary.

The Court noted however that, as more than twelve and a half years had elapsed since the domestic courts had last assessed the applicant’s dangerousness with the help of a medical expert, recent expert advice had been necessary to determine whether he remained dangerous. Moreover, further elements relevant to the development of his personality in prison, and thus of his dangerousness, remained unclear. There had in particular been no examination of the question, raised by the prison authorities, whether the applicant’s advancing age or his contact with the psychological counselling service had initiated any changes in his personality which could be taken up in a new therapy. It was also relevant that the applicant had been detained for a considerable time in a prison in which there appeared to be no means of breaking the deadlock that had set in and ensuring his cooperation with the prison staff. In such a situation, it was particularly important to consult an external expert to obtain fresh proposals for initiating the necessary therapeutic treatment. In that connection, the Court recalled that a decision not to release a detainee as he still posed a threat to the public could become inconsistent with the objectives of an order for preventive detention if the person concerned was deprived of the means, such as suitable therapy, to demonstrate that he was no longer dangerous.

Accordingly, in the absence of a fresh external medical expert on the need for continued preventive detention, there was no longer a sufficient causal connection, for the purposes of sub-paragraph (a) of Article 5 § 1, between the applicant’s criminal conviction by the sentencing court in 1997 and his continued preventive detention ordered on 20 January 2010.

Conclusion: violation (unanimously).

Article 41: EUR 5,000 in respect of non-pecuniary damage.

 

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This summary by the Registry does not bind the Court.

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