Germany: Court backs retrospective preventive detention

Judges have ruled that Germany’s preventive detention of a convicted murderer did not breach European human rights law.

In its 2 February judgement, in the case of Ilnseher v. Germany (application nos. 10211/12 and 27505/14), which concerned the lawfulness of a convicted murderer’s preventive detention, the European Court of Human Rights held, unanimously, that there had been:

no violation of Article 5 § 1 (right to liberty and security) or Article 7 (no punishment without law) of the European Convention on Human Rights on account of Ilnseher’s retrospective preventive detention from the moment when he was placed in a centre for psychiatric treatment, namely 20 June 2013 onwards,

no violation of Article 5 § 4 (right to liberty and security) of the European Convention on account of the duration of the proceedings for review of Ilnseher’s provisional preventive detention,


no violation of Article 6 (right to fair trial) on account of the alleged lack of impartiality of one of the judges who had ordered his retrospective preventive detention.

The applicant, Daniel Ilnseher, is a German national who was born in 1978 and is currently detained in a centre for persons in preventive detention on the premises of Straubing Prison (Germany).

In 1999, Ilnseher was convicted of murder in the Regensburg Regional Court and sentenced to ten years’ imprisonment under the criminal law applicable to young offenders. The court found that in June 1997, Ilnseher, then aged 19, had strangled a woman who had been jogging on a forest path.

From July 2008 onwards, after he had served his full prison sentence, Ilnseher was remanded in provisional preventive detention. In June 2009, the Regensburg Regional Court ordered his retrospective preventive detention.

The court, having regard to reports by a criminological expert and a psychiatric expert, found that Ilnseher was still harbouring violent sexual fantasies and that there was a high risk that he would again commit serious violent and sexual offences if released, including murder for sexual gratification.

The European court found in particular that the German courts had been justified in finding that Ilnseher’s mental disorder was such as to warrant his detention as a person of unsound mind. It further found that, because his preventive detention had been ordered because of and with a view to addressing his mental condition, the retrospective preventive detention order in question could not be considered a “penalty” and so could not fall foul of the principle of ‘no punishment without law.’

Furthermore, the court decided, unanimously, to strike out of its list of cases the part of the application concerning Ilnseher’s preventive detention from 6 May 2011 (namely, the date when the preventive detention order in question was issued) until 20 June 2013, in view of the government’s declaration recognising that Ilnseher had not been detained in a suitable institution for the detention of mental health patients during that period and awarding him compensation.

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