CASE OF D.J. v. GERMANY
(Application no. 45953/10)
7 September 2017
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 D.J. v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Erik Møse, President,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 4 July 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 45953/10) 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 D.J. (“the applicant”), on 9 August 2010. On 11 June 2015 the President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).
2. The applicant, who had been granted legal aid, was represented by Mr M. Luft, a lawyer practising in Berlin. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.
3. The applicant alleged, in particular, that the order for the continued execution of his preventive detention had breached Article 5 § 1 of the Convention as the detention order had been based on an old and insufficient psychiatric expert opinion and as he had been denied necessary therapy with an external psychologist.
4. On 11 June 2015 the complaint concerning the continuation of the applicant’s preventive detention on the basis of allegedly insufficient expert advice and despite the refusal to authorise the continuation of external therapy was communicated to the Government under Article 5 §§ 1 and 4 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1952. At the time of lodging his application, he was detained in Berlin Tegel Prison. He now lives in Berlin.
A. Background of the case
1. The applicant’s conviction
6. On 1 October 1998 the Berlin Regional Court convicted the applicant of dangerous assault. It sentenced him to six years and six months’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see paragraph 36 below). The court found that the applicant had stalked his former girlfriend, terrorised her and her family with telephone calls, sudden appearances and threats against their life and limb, had finally waylaid his former girlfriend in front of her workplace and had stabbed her twice in the neck with a pair of scissors with the intention of killing her. He had stopped short of stabbing his victim to death. Endorsing the findings psychiatric expert A. had set out in his report, the court was of the view that the applicant had acted with diminished criminal responsibility as he had been in a state of affective excitement and suffered from a neurasthenic syndrome at the time of the offence. The court found that the applicant, who had previously been convicted in 1975, 1977, 1981, 1983 and 1988 of comparable offences including dangerous and sexual assault and rape, committed mostly against former girlfriends at the end of their relationship with him, had a propensity to commit serious violent offences and was dangerous to the public.
7. The applicant served his full term of imprisonment, which ended on 27 February 2005, essentially in Berlin Tegel Prison.
2. The execution of the applicant’s preventive detention
8. The applicant was not released at the end of his prison sentence but remained in factual preventive detention without a formal decision of the competent courts for the execution of the preventive detention order under Article 67c of the Criminal Code (see paragraph 36 below), because the proceedings were delayed.
9. On 15 June 2007 the Berlin Court of Appeal decided that the applicant’s further preventive detention without a court decision ordering its execution was unlawful, and ordered its interruption. The applicant was released on that day.
10. On 9 July 2007 the Berlin Regional Court ordered the execution of the applicant’s preventive detention in accordance with Article 67c § 1 of the Criminal Code as it was not reasonable to expect that the applicant would commit no further unlawful acts if released. It took note, in this context, of the view expressed by psychotherapy expert B., who had considered that the applicant’s impulsive and offensive behaviour in the hearings in June 2007 had confirmed the finding in his report dated 15 September 2005 that the applicant was still dangerous to the public.
11. The applicant appealed against the decision. He remained at liberty while the appeal was pending.
12. While he was at liberty, he found a flat and a job and voluntarily started psychotherapy treatment with a female psychologist, So. He regularly attended weekly therapy sessions with So. and did not commit any criminal offences while at liberty.
13. On 27 May 2008 the Berlin Court of Appeal upheld the Berlin Regional Court’s decision. Just like the Regional Court, it based its decision on a medical expert opinion drawn up previously by psychotherapy expert B. and psychologist S. Expert B. had examined the applicant on four occasions between February and September 2005. S. had performed psychological tests with the applicant in March 2005. Both experts had issued their common written medical report on 15 September 2005 and had supplemented it with a further medical statement answering the questions of counsel representing the applicant on 20 April 2006. The original report was moreover based on the examination of the applicant’s prison files and a large number of investigation files, as well as on an interview with one of his fellow prison inmates.
14. In their written report, the experts came to the conclusion that the applicant suffered from a narcissistic and antisocial personality disorder. They were of the view that there was a very high risk that the applicant would reoffend because of his personality structure and could be expected to commit serious criminal offences mainly directed against potential female victims’ physical and sexual integrity. The applicant had continually committed new offences while on probation, so that his probation had been revoked on five occasions. He had mostly committed crimes against the physical and sexual integrity of women and usually at the end of his relationships, when he had been unable to accept that his girlfriend had left him. Therapeutic treatment had not been successful so far.
15. The court endorsed the findings of the psychiatric experts. It ruled that although the applicant had not committed any offences during his year at liberty, and although he had voluntarily and regularly undergone psychological treatment during that year, there was no reason to believe that he would abstain from reoffending. In the past the applicant had already abstained from committing further offences for longer periods. Situations similar to those in which the applicant had previously committed offences, especially against the physical and sexual integrity of his female partners, at the end of relationships, were likely to arise and to escalate again just as in the past.
16. On 30 May 2008 the applicant returned voluntarily to Berlin Tegel Prison for the continuation of his preventive detention.
17. On 2 September 2008 the Federal Constitutional Court declined to consider the constitutional complaint lodged by the applicant against the Regional Court’s and the Court of Appeal’s decision on the execution of the preventive detention order (file no. 2 BvR 1612/08).
18. On 20 December 2012 an application (no. 12132/09) lodged with this Court in this context was declared inadmissible by a Single Judge in a procedure pursuant to Article 27 of the Convention.
B. The proceedings at issue
1. The decision of the Berlin Regional Court
19. On 12 October 2009 the Berlin Regional Court decided in its first periodic review proceedings, in accordance with Articles 67d § 2 and 67e §§ 1 and 2 of the Criminal Code in their then relevant version (see paragraph 36 below), that the applicant’s preventive detention was to continue. It found that it was not reasonable to expect the applicant to commit no further unlawful acts on his release.
20. The court heard the prison authorities which, in their written statement of 6 March 2009, submitted that the applicant was not willing to work on his problems and refused any therapeutic treatment in the detention centre. The court also heard the applicant on 25 September 2009. It further based its decision to extend the applicant’s preventive detention on the opinion of psychotherapy expert B. and psychologist S. of 15 September 2005, supplemented on 20 April 2006 (see paragraph 13 above). It had regard to the fact that the applicant had been convicted fifteen times since 1971, including ten convictions for violent crimes.
21. The Regional Court further dismissed the applicant’s request for a new psychiatric expert opinion. It found that Article 454 § 2, read in conjunction with Article 463 § 3 of the Code of Criminal Procedure (see paragraph 37 below), only required a new psychiatric expert report as a basis for a periodic review decision if the court was considering releasing a detainee from preventive detention on probation, in order to ensure that he was no longer a danger to the public. The court held that, in accordance with the case-law of the Federal Constitutional Court (see decision of 3 February 2003, file no. 2 BvR 1512/02) and of the Constitutional Court of Berlin (see decision of 4 March 2009, file no. VerfGH 104/07) it was otherwise within the discretion of the court assessing the need to extend the preventive detention order to decide whether a new expert opinion was necessary. As a rule, an expert opinion would be necessary if the detainee suffered from psychiatric anomalies that demanded a psychiatric expert’s assessment in order to be able to predict the danger he represented for the public. Otherwise, a new psychiatric expert report was generally not necessary unless special new circumstances demanded a new examination of the detainee.
22. The court found that, in accordance with the legal standards described, there was no necessity to seek a new expert opinion. It referred to the arguments given in the Court of Appeal’s decision of 27 May 2008, adding that there had been no significant changes since then. The applicant had refused to undergo therapeutic treatment within the detention centre since he had been returned to preventive detention. His age of 57 years did not warrant a different conclusion as regards the danger he represented in the circumstances of his case. The written expert opinion of B. and S. of 15 September 2005, supplemented on 20 April 2006 and explained by B. at two hearings, lasting a total of six hours, before the Regional Court in June 2007, was therefore still recent enough.
23. The court was, however, of the view that the applicant should be allowed to continue his therapy with the external psychologist So., which he had not been authorised to pursue since his renewed preventive detention. The prison authorities should allow him to continue and organise escorted short-term leave for therapy sessions with his psychologist outside the detention centre.
2. The decision of the Berlin Court of Appeal
24. On 24 March 2010 the Berlin Court of Appeal dismissed the applicant’s appeal. The court considered that releasing the applicant on probation on the condition that he underwent therapeutic treatment outside the detention centre would be irresponsible. There were no convincing and verifiable indications that the applicant had tackled his offences or the flaws in his character that had led to them. The year he had spent at liberty during the interruption of his preventive detention did not prove otherwise, although he had not reoffended during that period of time. The applicant had already abstained from committing offences for longer periods of time in the past, but had nevertheless repeatedly committed serious offences against the physical integrity of his female partners when they had ended their relationship with him. Having regard also to the personality disorders leading to his dangerousness, the period of one year at liberty was therefore too short to prove that the applicant was no longer dangerous. In this regard, the court referred to the reasoning in its decision of 27 May 2008 and the expert opinion of B. and S. on which that decision was based (see paragraphs 13-15 above).
25. The court further recognised that the applicant had voluntarily undergone psychological treatment once per week with the psychologist So. while at liberty. However, it considered that there was no proof of the success of this treatment. Instead, the impulsive and offensive way in which the applicant treated other people, notably those working in the detention centre, showed that his attitude and his character had not changed and that he was still unwilling to cooperate.
26. Moreover the court found that, although the prison authorities had, without giving proper reasons, refused to grant the applicant escorted short-term leave from prison, especially short-term leave for the purpose of meeting his external therapist So., such deficiencies in the execution of the preventive detention did not justify the applicant’s release. The court recognised that prison leave was necessary in order to enable the applicant, in the long run, to prove his capacity to live at liberty again without committing further offences. However, the court was of the view that, even if the applicant had been granted the necessary leave since his readmission into preventive detention, the period passed since then would have been too short to prove that he was no longer dangerous. Therefore, the continuation of the applicant’s detention was not yet excessive.
27. The Court of Appeal was moreover of the view that the Regional Court’s decision not to commission a new medical expert opinion was lawful and did not breach its duty to establish the relevant facts. As explained above, a new psychiatric expert would not be confronted with a significantly different situation to the one B. and S. had found when they prepared their expert report. The applicant’s refusal to cooperate and to accept further psychological treatment within the detention centre showed that the therapy with So. had not significantly changed his character and behaviour.
3. The decision of the Federal Constitutional Court
28. On 16 June 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the decisions of the Berlin Regional Court and the Berlin Court of Appeal, in which the applicant had alleged breaches of his constitutional rights to liberty and to a fair trial (file no. 2 BvR 903/10).
C. Other developments
1. The proceedings concerning the applicant’s request to be granted escorted short-term leave for external psychological treatment
29. On 24 March 2010, upon the applicant’s appeal, the Berlin Court of Appeal, in a separate decision, quashed the prison authorities’ and the Regional Court’s decision refusing the applicant short-term leave to continue his psychotherapy treatment with So. as from October 2008. The court ordered the prison authorities to grant the applicant escorted short-term leave at least every second week in order to undergo further psychotherapy treatment with the external psychologist, So.
30. The applicant was enabled to attend psychotherapy sessions with So. until his relationship of trust with the psychologist came to an end in September/October 2010. On 9 December 2010 the Berlin prison authorities thereupon suspended the applicant’s prison leave, finding that the applicant had repeatedly threatened So. On 29 April 2011 the Berlin Court of Appeal upheld that decision. It found that there was a risk that the applicant would use the prison leave to commit further offences, seeing that his dispute with So. resembled the situation arising in the applicant’s past relationships with women prior to his committing serious offences against them.
31. The applicant’s subsequent requests to be granted access to treatment with the external psychiatric expert Dr P. in a Berlin clinic were turned down by the prison authorities, confirmed by the Regional Court. The Berlin Court of Appeal quashed these decisions on 3 November 2011 and 4 May 2012 and ordered the prison authorities to reconsider the applicant’s requests in view of the court’s findings. In its decision of 4 May 2012 the Court of Appeal found that, as it had explained in its decision of 24 March 2010, the applicant could not be obliged to undergo therapy in prison. The applicant resumed external psychotherapy in September 2012.
2. Subsequent review of the applicant’s preventive detention
32. On 22 May 2012 the Berlin Regional Court issued its decision in the fresh periodic review proceedings. It held that the execution of the preventive detention was to be suspended on probation as from 20 November 2013, ordered the applicant’s probationary supervision for five years and ruled, inter alia, that the applicant was to avoid any contact with his former external psychologist So. and her family, as he had started to stalk her and threaten her with e-mails and telephone calls.
33. The court, endorsing the findings in a new external psychiatric expert opinion issued by P., held that although the probability that the applicant would reoffend at liberty was still high, it would be possible to release the applicant on probation after a preliminary period of about one year if the pre-operational phase was mastered by the applicant without further problems. As the prison authorities had ignored and boycotted the court’s orders to grant the applicant access to external psychological treatment for years in a way the court had never seen before and which it found to be unconstitutional, the applicant’s interest in being at liberty now outweighed the public interest.
34. On 12 October 2012 the Court of Appeal upheld that decision on appeal. It found that the applicant’s immediate release was not to be ordered owing to the danger he represented. Referring to a report drawn up by expert D. in 2010, it stressed in that context that the fact that the applicant had not reoffended while at liberty in 2007/2008 was not conclusive of his not representing a danger. The applicant had previously committed offences in the context of relationships with women. However, he had not had such a relationship during the time he was at liberty. Furthermore, he did not have a right to choose freely his therapist.
35. The applicant was released on parole on 20 November 2013.
II. RELEVANT DOMESTIC LAW
A. Provisions on the order and judicial review of preventive detention
36. The provisions on the order and judicial review of preventive detention referred to in the present case, as in force at the relevant time, can be found as follows: the provision on the order of preventive detention by the sentencing court (Article 66 § 1 of the Criminal Code) is set out in the case of M. v. Germany (no. 19359/04, §§ 49-50, ECHR 2009). The relevant provision on the order for the execution of preventive detention (Article 67c of the Criminal Code) is laid down in the case of Schönbrod v. Germany (no. 48038/06, § 48, 24 November 2011). The provisions on judicial review and duration of preventive detention (Article 67d § 2 of the Criminal Code and Article 67e §§ 1 and 2 of the Criminal Code) are contained in the case of H.W. v. Germany (no. 17167/11, §§ 41 and 42, 19 September 2013).
37. The relevant provisions of the Code of Criminal Procedure on expert advice in proceedings for judicial review of preventive detention orders set out as follows:
(3) ... Insofar as the court is called upon to decide upon execution of preventive detention, Article 454 § 2 shall be applicable mutatis mutandis in the cases referred to in Article 67d § 2 ... of the Criminal Code. ...”
ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
38. The applicant complained of the order for the continued execution of his preventive detention in the proceedings at issue. He claimed, in particular, that the proceedings and his ensuing detention had violated Article 6 § 1 and Article 5 § 1 of the Convention because his detention had been based on an old and insufficient psychiatric expert opinion. Moreover, he had not been authorised to continue therapy with the external psychologist So. with whom he had established a relationship of trust.
39. The Court notes that the proceedings at issue for judicial review of the applicant’s preventive detention no longer concerned the “determination ... of any criminal charge” against him for the purposes of Article 6 § 1 of the Convention (compare, mutatis mutandis, Homann v. Germany (dec.), no. 12788/04, 9 May 2007, and Puttrus v. Germany (dec.), no. 1241/06, 24 March 2009).
40. The applicant’s complaint therefore falls to be examined under Article 5 of the Convention alone. Having regard to the way in which the applicant phrased his complaint and the Court’s approach in comparable cases (see, for instance, Dörr v. Germany (dec.), no. 2894/08, 22 January 2013; and H.W. v. Germany, cited above, §§ 92-93), the Court will examine the present application under paragraph 1 of Article 5 alone 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;
41. The Government contested the applicant’s argument.
42. 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.
1. The parties’ submissions
(a) The applicant
43. The applicant claimed that his preventive detention at issue had violated Article 5 § 1 of the Convention. His detention was unlawful and could no longer be justified under sub-paragraph (a) of Article 5 § 1 because there was no longer a causal connection between his conviction and his deprivation of liberty after his renewed detention in May 2008.
44. The applicant argued, first, that the order for his continued preventive detention had become inconsistent with the aims pursued by the preventive detention order made by the sentencing court and arbitrary. Following his readmission to preventive detention, he had not been allowed to continue the therapy, which he had started while at liberty, with the external psychologist So. with whom he had built a relationship of trust. He had thus been further detained for being a danger to the public, but had at the same time been denied the necessary means, namely suitable therapy, to show that he was no longer dangerous.
45. The applicant contested having refused all offers of counselling and therapy made by the prison authorities, arguing that he had only insisted that the therapy had to be tailored to his needs. He also denied that he had threatened So. after his therapy had ended.
46. The applicant furthermore argued that his preventive detention had been based on an old and insufficient psychiatric expert opinion which had been issued before he had spent almost one year at liberty. The last medical expert report on his dangerousness dated back a considerable time. In particular, when heard in June 2007, expert B. had only defended his previous expert reports drawn up in 2005 and supplemented in 2006.
47. Moreover, in view of his good conduct while at liberty, when he had voluntarily undertaken therapy and had not reoffended, and his advancing age, fresh expert advice was necessary in order to establish sufficiently the relevant facts serving as a basis for a reliable prognosis concerning his dangerousness in 2009 and thus to order the continuation of his preventive detention. The assessment of his dangerousness, which was difficult for persons without medical expert knowledge, had to take into account the positive change in his circumstances resulting from the elements mentioned. The fact that he had not yet completed the external therapy at the time of the impugned decisions extending his preventive detention could not be held against him as he had been prevented by the prison authorities from pursuing that therapy from the time of his renewed detention in May 2008 onwards.
48. The applicant further submitted that on the grounds set out above, the review proceedings in which the continuation of his preventive detention had been ordered had been unfair and thus failed to comply with Article 5 § 4.
(b) The Government
49. The Government took the view that the applicant’s preventive detention resulting from the Regional Court’s order dated 12 October 2009 had complied with Article 5 § 1 of the Convention. The applicant’s detention had been justified under sub-paragraph (a) of Article 5 § 1 as “lawful detention ... after conviction by a competent court”.
50. The Government argued that there remained a causal connection between the applicant’s conviction by the Berlin Regional Court on 1 October 1998 and his continuing preventive detention as ordered by that court on 12 October 2009. The applicant’s preventive detention had still served to protect the public from further serious offences which might be committed by the applicant.
51. The Government submitted, first, that the said causal connection had not been broken, in particular, by the temporary refusal to allow the applicant to continue the external therapy he had started while at liberty. Since he had returned to preventive detention in May 2008, the applicant had declined all offers of suitable internal therapy made by the prison authorities until the impugned decision of 24 March 2010, in particular psychological counselling sessions in prison or psychotherapy treatment in the prison’s social therapy unit.
52. Moreover, the subsequent course of external therapy, which the applicant had finally obtained and which had ended in conflict only a few months later, showed that the doubts harboured by the prison authorities from the outset as regards the suitability of the therapy with So. had been justified.
53. The Government further explained that the domestic courts’ refusal to obtain a new expert report on the applicant’s dangerousness lay within their margin of appreciation and had not rendered the applicant’s detention unlawful for the purposes of Article 5 § 1. The domestic courts had not been obliged under the provisions of domestic law (Article 463 § 3 read in conjunction with Article 454 § 2 of the Code of Criminal Procedure; see paragraph 37 above) to obtain a new expert report as they did not intend to suspend the applicant’s preventive detention and grant probation.
54. Furthermore, the domestic courts had given extensive and convincing reasons why fresh expert advice was not necessary to establish sufficiently whether the applicant was still dangerous to the public. The assessment of the applicant’s dangerousness in the expert report of 2005/2006 had been updated by expert B. at the hearing before the Regional Court in June 2007, having regard to the impression he had gained from the applicant at the hearing and notably the applicant’s impulsive and offensive behaviour, and thus dated back only some two years and six months.
55. Moreover, the domestic courts had explained why the fact that the applicant had been at liberty for a short period of time and had undergone therapy voluntarily during that period did not alter the prognosis regarding his dangerousness against the background of his previous, numerous violent offences and the profound nature of his personality disorder. In particular, there had not been any change in the factual basis on which the prognosis as to the applicant’s dangerousness was to be based. The applicant had a tendency to commit violent offences in case of conflict in a relationship with a woman. As he had not had a relationship during the period when he was at liberty in 2007/2008, the fact that he did not reoffend did not prove that he had overcome his personality disorder. Furthermore, the weekly external therapy sessions he had started had not yielded any results concerning the treatment of his personality disorder, which had not been successfully treated in prison either, but had ended in a situation which resembled those in the applicant’s past relationships with women, prior to his committing serious offences against them.
56. For the same reasons, the procedure by which the domestic courts examined the lawfulness of the applicant’s continued preventive detention was fair and in conformity with Article 5 § 4 of the Convention.
2. The Court’s assessment
(a) Recapitulation of the relevant principles
57. Detention of a person “after” conviction, for the purposes of sub-paragraph (a) of Article 5 § 1, means that there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see, inter alia, Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008). However, with the passage of time, the link between the initial conviction and further deprivation of liberty gradually becomes less strong. The causal link required by sub-paragraph (a) might eventually be broken, first, if a position were reached in which a decision not to release was based on grounds that were inconsistent with the objectives of the initial decision (by a sentencing court) or, second, on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (see M. v. Germany, cited above, § 88 with further references).
58. A decision not to release a detainee may become inconsistent with the objectives of the sentencing court’s order for that person’s detention if the person concerned was placed, and later remanded, in detention as there was a risk that he or she would reoffend, but the person is, at the same time, deprived of the necessary means, such as suitable therapy, to demonstrate that he or she was no longer dangerous (see, in the context of preventive detention, Ostermünchner v. Germany, no. 36035/04, § 74, 22 March 2012; and H.W. v. Germany, cited above, § 112; and in the context of detention in a psychiatric hospital Klinkenbuß v. Germany, no. 53157/11, § 47, 25 February 2016).
59. The reasonableness of the decision to extend a person’s detention in order to protect the public from further offences committed by that person is called into question, in particular, where the domestic courts plainly had at their disposal insufficient elements warranting the conclusion that the person concerned was still dangerous to the public, notably because the courts failed to obtain indispensable and sufficiently recent expert advice (see, in the context of preventive detention, Dörr, cited above, and H.W. v. Germany, cited above, § 107; compare, mutatis mutandis, in the context of Article 5 §§ 1 (e) and 4, Ruiz Rivera v. Switzerland, no. 8300/06, § 60, 18 February 2014).
60. The Court’s well established case-law shows that the question whether medical expertise was sufficiently recent is not answered by the Court in a static way but depends on the specific circumstances of the case before it (see, mutatis mutandis, Aurnhammer v. Germany, no. 36356/10, §§ 34-37, 21 October 2014 with further references). It is a decisive element in that context whether there were potentially significant changes in the applicant’s situation since the last examination by an expert.
61. The Court thus considered relevant, in addition to when the expert report was established, whether or not it was drawn up in a different factual context. In H.W. v. Germany, cited above, § 109, for instance, the domestic courts based their assessment of the dangerousness of the applicant, against whom a preventive detention order was being executed, on an expert report dating back more than twelve years which was drawn up in a different context, at a time when the criminal proceedings against the applicant were still pending. In contrast, in Dörr, cited above, and W.P. v. Germany, no. 55594/13, § 52-53, 6 October 2016, the Court considered that there were no substantial changes in the applicants’ personal or therapeutic situation during the execution of their preventive detention since the last expert reports dating back six years and two-and-a-half years respectively.
62. Moreover, the Court took into account whether elements relevant to the development of the applicant’s personality, notably changes initiated by a therapy he had taken up, had to be clarified (compare H.W. v. Germany, cited above, § 111). Furthermore, in “deadlock situations” in which no means of cooperation between the detainee and the prison authorities could be found for a considerable time, the importance to consult an external expert in order to obtain fresh propositions for initiating the necessary therapeutic treatment was repeatedly stressed (compare, mutatis mutandis, in the context of Article 5 §§ 1 (e) and 4, Ruiz Rivera, cited above, § 64, which concerned an expert report dating back less than four years, and Vogt v. Switzerland (dec.), no. 45553/06, 3 June 2014; and also H.W. v. Germany, cited above, § 112).
(b) Application of these principles to the present case
63. In determining whether the applicant’s continued preventive detention, ordered by the Berlin Regional Court on 12 October 2009 and confirmed on appeal, complied with Article 5 § 1, the Court notes that the applicant’s preventive detention was imposed by the Berlin Regional Court on 1 October 1998 together with his conviction for dangerous assault. The detention could therefore be justified under sub-paragraph (a) of Article 5 § 1 if it occurred “after” that conviction, that is, if there was still a sufficient causal connection between the applicant’s conviction in 1998 and his continued deprivation of liberty ordered in 2009/2010.
64. For that causal connection to be maintained it is required, first, that the decision not to release the applicant was consistent with the objectives of the sentencing court’s order for his preventive detention. The Court observes in this respect that the domestic courts’ impugned order for the continuation of the applicant’s preventive detention was made as the courts considered that there was a high risk that the applicant would commit further serious offences, especially against the physical integrity of women, if released (see paragraphs 19-20, 24 and 14 above). These grounds as such were in line with the objectives which the sentencing Berlin Regional Court pursued by ordering the applicant’s preventive detention in 1998. The latter court had found that the applicant, in view of his repeated offences including dangerous and sexual assault and rape, committed mostly against former female partners at the end of a relationship with him, had a propensity to commit serious violent offences and was dangerous to the public (see paragraph 6 above).
65. The Court further takes note of the applicant’s argument that the decision to extend his preventive detention had become inconsistent with the aims pursued by the sentencing court’s preventive detention order as he had been refused the possibility to continue therapy with the external psychologist, So.
66. The Court observes in this respect that from the time of his renewed preventive detention on 30 May 2008 until the Court of Appeal’s decision in March 2010, the applicant was refused the possibility to continue external therapy with a psychologist, So., which he had started voluntarily while at liberty. It observes that the domestic courts themselves considered that granting the applicant prison leave specially for therapy sessions was important in order to enable him to prove his capacity to live at liberty without committing further offences (see paragraphs 23 and 26 above). The applicant was therefore finally allowed to pursue his therapy with So. and resumed that therapy shortly after the impugned decisions of the Regional Court and the Court of Appeal, until it ended for reasons outside the authorities’ control and responsibility (see paragraphs 29-30 above).
67. The Court observes that the domestic authorities in the present case had not denied the applicant suitable therapy aimed at reducing his dangerousness. While it is true that the applicant had been refused, for a considerable period of time, the possibility of continuing external therapy with So. it is uncontested that the applicant had repeatedly been offered therapeutic treatment in prison and there is nothing to indicate that the treatment offered by the prison authorities could not objectively be considered as equally suitable to reduce the danger posed by the applicant. Nor does there appear to have been any legal basis, under domestic law, for the applicant to insist on availing of an external therapist for whom he initially expressed a preference. The applicant’s continued refusal to countenance the therapy on offer also influenced the negative prognosis issued by the prison authorities and was relied on by the Court of Appeal as a factor when reaching its impugned decision.
68. As the applicant was not, therefore, deprived of suitable therapy and thus of the necessary means to demonstrate that he was no longer dangerous to the public, the impugned decisions to extend the applicant’s preventive detention were not inconsistent with the objectives of the sentencing court’s order for his preventive detention, namely to prevent a dangerous convicted person from reoffending.
69. As shown above (see paragraphs 59-62), the persistence of the causal connection between the initial conviction and the continuing deprivation of liberty requires not only that the decision not to release a detainee remained consistent with the objectives of the sentencing court’s order for that person’s detention. It requires, second, that the decision not to release the detainee is based on an assessment that is reasonable in terms of the objectives pursued by that measure by the sentencing court. That reasonableness may notably be called into question where, as alleged by the applicant in the present case, the domestic courts failed to obtain indispensable and sufficiently recent expert advice and thus plainly had at their disposal insufficient elements warranting the conclusion that the applicant was still dangerous to the public.
70. The Court notes that the decision to extend the applicant’s detention was confirmed by the Court of Appeal in March 2010. That decision was based, inter alia, on expert advice regarding the applicant’s dangerousness given by B. and S. Expert B. examined the applicant in person on four occasions between February and September 2005. Both experts had subsequently submitted their common written report on the applicant’s dangerousness in September 2005. They had supplemented it with a further medical statement, in which they answered the questions of counsel representing the applicant, in April 2006. The report was based not only on the individual assessment of the applicant, but also on an examination of his prison files, files from the investigations and an interview with a fellow prison inmate. B. further explained the expert medical assessment at two hearings, lasting a total of six hours, before the Regional Court in June 2007. He indicated at that time that he had further based his confirmation of the assessment on the behaviour of the applicant at the hearings, behaviour which he considered impulsive and offensive and considered the applicant still to be dangerous (see paragraphs 10, 13, 20, 22 and 24 above).
71. One basis for the original assessment of the applicant was therefore the personal examination undertaken over several months in 2005, four-and-a-half years before the Court of Appeal’s impugned decision extending his preventive detention in March 2010. The two written reports referred to were also drawn up four-and-a-half years and three years and eleven months respectively before that decision. The Court notes, therefore, that the expert advice dated back some time and that there were changes in the applicant’s personal and therapeutic situation since the assessments in 2005/2006. Those changes, including his release from detention for almost a year and his pursuance of external therapeutic treatment were potentially significant elements for the assessment of the applicant’s dangerousness at the relevant time.
72. Furthermore, it appears that no means of cooperation between the applicant and the prison staff in order to work towards reducing significantly the applicant’s dangerousness had been found in the past and no significant progress appears to have been made by the applicant in prison for a long time, whereas outside prison the applicant had proved ready and capable of pursuing therapy.
73. The Court notes, however, that the domestic courts, which were not obliged under domestic law to obtain a new expert report in the circumstances of the applicant’s case (Article 454 § 2, read in conjunction with Article 463 § 3 of the Code of Criminal Procedure, see paragraph 37 above), provided thorough reasons for considering that they had at their disposal sufficient elements, including indispensable and sufficiently recent expert advice, warranting the conclusion that the applicant still presented a danger to the public and justifying his extended preventive detention. They indicated that the year he had been at liberty was too short to prove that he was no longer dangerous, on the following grounds: the applicant suffered from a serious personality disorder, which had not been successfully treated in the past and there was no proof that it had been successfully treated in his therapy with So. The applicant, who had been convicted fifteen times since 1971, including ten convictions for violent crimes (see paragraph 20 above), several of which had been committed at the end of a relationship with a female partner, had not been in a relationship during the period when he had been at liberty. Having heard both the prison authorities and the applicant, the domestic courts further had regard to the impulsive and offensive way in which the applicant still treated other persons notably in the detention centre. Having regard to the specific circumstances of the case before it and after addressing in detail whether the procurement of new expert advice was necessary, the domestic courts concluded that the applicant’s attitude and character had not changed despite the passage of time, his temporary release and the temporary pursuit of external therapy.
74. Given these circumstances, the Court considers that the applicant’s contention before the domestic courts and this Court that the expert medical advice relied on was insufficient and outdated must be rejected. As indicated in paragraph 70 above, that expert advice originated in 2005 when it was drawn up with reference to a significant quantity of information in his prison and investigation files and on the basis of an interview and assessment of his life in prison and was subsequently confirmed, supplemented and tested with reference to further direct observation of the applicant. In view of all the above, the Court is satisfied that in the particular circumstances of the case, notably in view of the specific context in which the applicant had repeatedly committed serious violent offences, the complexity of the applicant’s therapeutic needs, the fact that no progress in the applicant’s treatment could be established due to the lack of cooperation between him and the prison authorities and the maintenance under review of the expert medical advice relied on, the domestic authorities could reasonably have concluded that that advice was still sufficiently recent and relevant. Their decision not to release the applicant was based on an assessment that was reasonable in terms of the objectives pursued by the sentencing Berlin Regional Court when ordering the applicant’s preventive detention.
75. Consequently, there remained a sufficient causal connection, for the purposes of sub-paragraph (a) of Article 5 § 1 of the Convention, between the applicant’s criminal conviction by the sentencing Berlin Regional Court in 1998 and his continued deprivation of liberty in preventive detention ordered by that court on 12 October 2009 and confirmed by the Berlin Court of Appeal in March 2010.
76. The applicant’s preventive detention, ordered under Article 67d § 2 of the Criminal Code, was further lawful for the purposes of Article 5 § 1.
77. There has accordingly been no violation of Article 5 § 1 of the Convention in this respect.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been no violation of Article 5 § 1 of the Convention.
Done in English, and notified in writing on 7 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Erik Møse
Deputy Registrar President