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Judges rule against German preventive custody complaints

Judges have turned down an appeal by two men who complained that their preventive detention in Germany after having served their prison sentences breached human rights laws.

The European Court of Human Rights today confirmed that the prisoners’ preventive detention as ordered by the sentencing court does not in itself violate the convention.

In the Chamber judgments in the cases Schmitz v. Germany (application no. 30493/04) and Mork v. Germany (application nos. 31047/04 and 43386/08), which are not final, judges decided, unanimously, that there had been no violation of Article 5 § 1 (right to liberty and security).

Both cases concerned the applicants’ complaint about being kept in preventive detention . The court confirmed the findings in its earlier case-law that preventive detention as ordered by the sentencing court was justified under the Convention as detention ‘after conviction.’

At the same time, the court welcomed the recent leading judgment of the German Federal Constitutional Court which declared incompatible with the Basic Law all provisions on the retrospective extension of preventive detention and on the retrospective order of such detention.

Principal facts

The applicants, Paul H. Schmitz and Hermann Walter Mork, are two German nationals who were born in 1959 and 1955 respectively. After a history of previous convictions, they both served prison sentences of several years for serious offences and are currently in Aachen Prison in preventive detention, which was ordered by the sentencing courts under Article 66 § 1 of the German Criminal Code together with their respective convictions.

Schmitz was convicted by the Cologne Regional Court of two counts of sexual assault and sentenced to five years and six months’ imprisonment in February 1990. At the same time, the court ordered his preventive detention. Two months after having served his prison sentence, his preventive detention order was suspended on probation.

In November 1996, the same court convicted Schmitz, who had reoffended shortly after his release, of attempted sexual assault and falsification of a driving licence. It sentenced him to four years and nine months’ imprisonment and ordered his second preventive detention. The suspension on probation of his first preventive detention order was subsequently revoked by the Bonn Regional Court, in view of the fact that he had reoffended and had not diligently continued his therapy.

Since May 2000, when he had served his last prison sentence, Schmitz has been in preventive detention, as ordered in the 1990 and 1996 judgments. Schmitz’ request for release was dismissed by the Aachen Regional Court, in a decision that was upheld by the Cologne Court of Appeal in September 2003.

In March 2004, the Federal Constitutional Court declined to consider his constitutional complaint in respect of his preventive detention for an indefinite duration.
Mr Mork was convicted by the Aachen Regional Court of drug trafficking and sentenced to eight years and six months’ imprisonment in February 1998. The court did not initially order his preventive detention, but the judgment was subsequently quashed by the Federal Court of Justice in this respect, and in November 2001, a different chamber of the Aachen Regional Court ordered Mr Mork’s indefinite preventive detention.

Having consulted a psychiatric expert, it found that he was likely to commit further serious offences and was thus dangerous to the public.

In March 2004, the Federal Constitutional Court declined to consider Mork’s constitutional complaint concerning the sentencing court’s order for his preventive detention. In a second set of proceedings, in July 2008, the Federal Constitutional Court declined to consider his constitutional complaint concerning the decisions by the courts
dealing with the execution of sentences, which had ordered his placement in preventive detention following his prison sentence, holding that he was still dangerous to the public.

Complaints procedure

Relying in particular on Article 5 § 1, both applicants complained about their preventive detention beyond serving their sentences. Schmitz also relied on Article 7 § 1.

Schmitz’ application was lodged with the European Court of Human Rights on 19 August 2004. The two applications in which Mork’s case originated were lodged with
the Court on 18 August 2004 and 3 September 2008 respectively.

Decision of the Court

Article 5 § 1

The Court saw no reason to depart from its findings in the case of M. v. Germany, in which it had held that the applicant’s preventive detention, having been ordered by the sentencing court together with the prison sentence, had been covered by the convention in so far as it had not been extended beyond the maximum duration of ten years permitted at the time of his offence and conviction.

Thus it considered that both Schmitz’ and Mork’s preventive detention had been detention “after conviction” for the purposes of Article 5 § 1.

Unlike the applicant in M. v. Germany, they had not been in preventive detention beyond the ten-year maximum period allowed at the time of their offence. There remained a sufficient causal connection between Schmitz’ and Mork’s conviction and their deprivation of liberty. The respective orders for their preventive
detention and the decisions of the courts responsible for the execution of sentences not to release them were based on the same grounds, namely to prevent them from
committing further serious offences on release.

Their preventive detention was also lawful in that it was based on a foreseeable application of the Criminal Code. In this connection, the Court took note of the German
Federal Constitutional Court’s leading judgment of 4 May 2011 in which it had held that all provisions of the Criminal Code on the retrospective extension of preventive detention and on the retrospective order of such detention were incompatible with the German 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 Court welcomed that the German Constitutional Court had taken the approach of interpreting the provisions of the Basic Law also in the light of the Convention and its case-law, which demonstrated that court’s continuing commitment to the protection of fundamental rights not only at national, but also at European level.

The Court further observed the German Federal Constitutional Court’s finding in its recent judgment that the current provisions on the imposition and duration of preventive
detention were incompatible with the fundamental right to liberty to the extent that they did not satisfy the constitutional requirement of establishing a difference between preventive detention and a prison sentence. However, that court’s judgment had not declared void the relevant provisions with retrospective effect, and Schmitz’ and Mork’s preventive detention had in any event been ordered and executed on the basis of a previous version of the Criminal Code.

The lawfulness of their preventive detention was therefore not called into question. There had accordingly been no violation of Article 5 §

The Court declared inadmissible Mr Mork’s complaint (in his first application no. 31047/04) concerning the order for his preventive detention by the sentencing courts, as
he had failed to exhaust the domestic remedies in that respect. It also found that Schmitz could not claim to be a victim of an extension of his preventive detention with
retrospective effect, consequently his complaint under Article 7 §1 was inadmissible.

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